Kausha wrote:Just wondering aloud would the walk out from the statute be preparation to sterilize the potential impeachment motion in the event the trial outcome goes the other way? In other words if the judgement is not favorable we can snob whatever reparations are offered by the court and carry on since impeachment motions would never work if the rome statutes is not one of those treaties ratified by our katiba by virtue of us having left the Rome statute. Wakilis aboard shed some validate or invalidate.
Now to answer your question.
The starting point is to remember that the International Criminal Court is a court of last resort.
The reason why the Kenyan cases are there to begin with is because of our incapacity to conclusively determine and resolve the issues arising from the 2007 post election violence.
When Kenya failed (politically I may add) to establish a local mechanism that would have been able to facilitate investigations locally under best international practice then we were doomed to go to the Hague based Court.
The ICC was established in 2002 to provide a judicial mechanism to address humanitarian crimes of a huge magnitude which are said in the Rome Statute to include: crimes against peace, war crimes, genocide, crimes against humanity, and crimes of aggression.
Withdrawal would mean Kenya would stop co-operating altogether in aiding the ICC’s investigators from investigating crimes on the ground, it will not participate in terms of protecting witnesses, and this will thus adversely affect the practical elements of future cases.
As we already know the withdrawal won't affect present cases. That simply means the 2 Kenyan cases will proceed to full trial and in the event any of the Kenyans are found guilty they will be sentenced.
However we need to remember that Kenya’s full withdrawal from the ICC would take up to a year - and still requires the government, not parliament, to formally notify the United Nations secretary-general of its intention and desire to withdraw.
Therefore any impeachment motion based on a conviction will not be affected. At the time the Hague court's decision will have been made the same will be a valid and binding judgment.
What does the Constitution say about the whole scenario?
Let us start with Article 73 of the Constitution which states that:
73. (1) Authority assigned to a State officer—
(a) is a public trust to be exercised in a manner that—
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
Art. 73 has to be read with Art. 75(2) which in turn states:
(2) A person who contravenes clause (1), or Article 76, 77 or 78 (2)—
(a) shall be subject to the applicable disciplinary procedure for the relevant office; and
(b) may, in accordance with the disciplinary procedure referred to in paragraph (a), be dismissed or otherwise removed from office.
(3) A person who has been dismissed or otherwise removed from office for a contravention of the provisions mentioned in clause (2) is disqualified from holding any other State office.
A “State office” has been defined to mean any of the following offices—
(a) State President;
(b) Deputy State President;
(c) member of the Cabinet;
Among other positions of a public Nature so the President and the DP fall squarely within this category.
Its a cardinal principal of law that you can only be convicted if the law under which you were charged was a law at the time of Commission of the offence.
At the moment we have recognized in our Constitution that ratified International treaties form part of our law.
The President and DP would have been off the hook if they had set the current move to withdraw from the ICC before the first status conference. Unfortunately for them they didn't and thus the provisions in Art. 145 for the President can take effect.
In that Art. it is provided that the President can be impeached by a member of the National Assembly, supported by at least a third of all the members, by moving a motion for the
impeachment—
(a) on the ground of a gross violation of a provision of the Constitution or of any other law;
(b) where there are serious reasons for believing that the President has committed a crime under national or
international law (a conviction would suffice here); or
(c) for gross misconduct.
There is a general presumption in Kenyan law that legislation is not intended to operate retroactively, or with retrospective effect, because to hold otherwise might cause great injustice to the individual.
The presumption applies equally to two different forms of retrospectivity:
The relevant Act might provide that at some past date the law shall be taken to have been something other than in fact it was at the time; and
The relevant Act might apply to transactions that were concluded before the legislation coming into force, thereby affecting vested rights and obligations.
However this is not the case in this instant. The National Assembly will be prefectly in order to set in force the motion of impeachment though we all know there is no possibility of two thirds of the members voting to impeach. Tyranny of numbers....
possunt quia posse videntur