Parliament's move will hurt Kenyan cases at the ICC

The indictment of President Uhuru Kenyatta, Deputy President William Ruto and Journalist Joshua Sang by the International Criminal Court for crimes against humanity is a matter that has been at the centre of Kenyan politics for quite a while. Hardly a day goes without the imminent trial of the three Kenyans in The Hague being talked about.

Suffice it to note that Uhuru and Ruto are presently the country's top leaders. The interest their impending trial has touched off is therefore quite understandable, even in order. But in what I can only term as an attempt to discredit the Hague-based court, Parliament has been recalled to discuss a Bill by the National Assembly Majority Leader Adan Duale to pull Kenya out of the Rome Statute.

In vouching for his Bill, Duale argues that with the commencement of the trial, it is not so much the interests of Uhuru and Ruto that are at stake but the sovereignty of Kenya. Duale further argues that his Bill has nothing to do with the case facing Uhuru, Ruto and Sang. The question that Duale should, nonetheless, answer is, why did he not introduce this Bill long before the start of the trials? Few Kenyans, if any, are convinced that Parliament's move to reconvene has anything to do with the sovereignty of the country.

Be that as it may, Parliament should not lose sight of the fact the Kenyan cases at the ICC are at an advanced stage and any attempt to scuttle them is an exercise in futility. To start with withdrawal from the Rome Statute is not a moment's affair. A state party keen on pulling out of the statute has to write to the UN Secretary General notifying him of its intentions. It will then take a whole year before the withdrawal is effected. Ongoing cases are, however, not affected by withdrawal. They must, of necessity, run their full course.

At the same time, Parliament's move amounts to an illegality. As per the provisions of the Treaty Making and Ratification Act of 2012, it is the Cabinet and not Parliament that should initiate the withdrawal of Kenya from international treaties to which it is a party. Section 17(1) of the said Act stipulates that, "Where Kenya wishes withdraw from a treaty, the relevant Cabinet Secretary shall prepare a cabinet memorandum indicating the reasons for such an intention".

In line with the provisions of this statute, the person mandated to initiate the process of withdrawal from a treaty is the Attorney General. He has to do this by drafting a memorandum and tabling it before Cabinet for deliberation and approval. After the Bill is discussed and approved by the Cabinet, it should then be forwarded to Parliament, both the National Assembly and the Senate, for debate. Parliament may pass or reject the draft Bill.

One therefore fails to understand why the National Assembly Majority Leader is arrogating himself powers that he doesn't have. Perhaps it is the zeal to endear himself to the President and his deputy that is propelling Duale. The MP should, however, be reminded that rather than help Uhuru and Ruto, his action may harm their case at the ICC.

Those familiar with the operations of courts of law, the world over, will tell you that nothing infuriates judicial officers more than casting improper motives on their court(s). In referring to the ICC as an instrument being used by western countries to punish their perceived enemies, Duale and his colleagues are consciously or unconsciously disparaging the judges serving in this court, some of whom will be presiding over the Kenyan cases. Judges are as human as anyone of us and to assume that they are wholly impervious to conventional human prejudices is far from the truth. For anyone appearing before a court of law and keen to draw the mercy of the judicial officers, deference to the court is not an option but a must. In the Kenyan case, matters are not made any better by the fact that Uhuru and Ruto are doing nothing to stop their lieutenants from treading this dangerous path.

It should also be clear to legislators that their move to withdraw from the Rome Statute paints Kenya in a very bad light. The message this sends out is that while the rest of the world is doing everything within its ability to bid farewell to impunity, Kenya is one of those few countries that are inextricably wedded to impunity. The Kenyan Parliament is telling the world that the high and mighty can do no wrong and hauling them before a court of law is unorthodox and reprehensible.

Uhuru and Ruto have maintained that they are wrongly before the court and it is just a matter of time before they are acquitted. The law also presumes them innocent until proven otherwise. Luckily the ICC, contrary to what MPs would have us believe, is a patently impartial court whose key motivation nothing but justice. Kenyan MPs should stop behaving badly. To paraphrase the late Nigerian literary icon Chinua Achebe, there's nothing noble in mourning more than the bereaved.