Why we need to conduct a referendum on the ICC

BY Moses Kuria

According to the Africa Centre for Open Governance (Africog) audited financial reports of 2010, this well known organisation at the heart of civil society in Kenya, received Sh1,306,756 from the International Criminal Court (ICC).

On December 15 of the same year, Africog received this funding from the ICC, the prosecutor of the court named Uhuru Kenyatta, now president and William Ruto, now deputy president as suspects in relation to the post-election violence in Kenya. On March 30, 2013, the Supreme Court of Kenya dismissed a petition filed by Africog challenging the election of Uhuru and Ruto in the March 4, 2013 election. The petition was filed through Africog’s head Gladwell Otieno.

On January 24, 2013, Ruto and Joshua arap Sang filed an application to move the trial venue to either Kenya or Tanzania. On August 26, 2013, the ruling was delivered. Nine judges favoured the changing of the venue to Kenya while five judges opposed. An equal number of nine judges favoured moving the trials to Tanzania with four judges opposing and one abstaining. To change the venue, it required to have 10 judges supporting and one opposing.

The judges who opposed the application cited a letter warning against moving the cases to either Kenya or Tanzania. The letter was sent by one Gladwel Otieno. In their ruling, the judges found the letter suspicious and even criticised Fatou Bensouda for changing her position only hours before the trial to the detriment of Ruto’s defence. Bensouda had earlier stated she was not opposed to moving the trials only to change her mind after receiving the letter from Ms Otieno. Despite criticising Ms Otieno, the application was not successful. To have an application of such magnitude and implications failing on account of a lone letter from Gladwel Otieno of the ICC-funded Africog, is simply frightening and unacceptable.

I have always held the belief that the ICC processes were transparent and that both the accused and the victims could get justice. The Gladwell Otieno case has compelled me to recall the benefit of doubt I had accorded The Hague-based court.  But I am only one citizen of Kenya. The other 40 million citizens ought to be given an opportunity, like Gladwell Otieno, to influence the ICC. This can only be achieved through a simple, comprehensible referendum question: “Do you want the trials to be conducted at The Hague or in Kenya”

The ICC and the United Nations should feel free to send up to a million observers to ensure the referendum is free, fair and transparent. Until the results of the referendum are known, Uhuru, Ruto and Sang’s trials should be put on hold. Whereas Sang is a private citizen of this country, Uhuru and Ruto were sworn-in on April 9, 2013. They pledged to uphold the Constitution of Kenya. Ruto and Uhuru would be committing an act of aggression against the people of this country if they proceed with the trials before the results of the ICC referendum are known.  They ought to tread very, very carefully.

Constitutionally, nations of the world are either monist whereby the international law is superior to the national law or dualist where the national law is superior to international law. Our Constitution is clearly a dualist one. The Rome Statute cannot be superior to our Constitution.

 In this regard, the dynamic duo would be risking law suits or even impeachment if they disregarded a referendum held under the Constitution they swore to uphold. The referendum held under our Constitution would automatically convert the ICC issue from being a personal challenge to a national obligation, especially given that Uhuru and Ruto are Commander-in-Chief and Deputy President.  It would be totally unfair for Gladwell Otieno and Africog to have a say in this matter while the rest of us are disenfranchised. As would be expected, Otieno’s partners in what has evolved into an evil society as opposed to civil society, will be up in arms against my proposal.

Fortunately, on August 27, 2010 we promulgated a constitution that gives us equal rights. When Jesus walked atop the waters of the river, I guess the newspapers in Galilee ran headlines such as “Man fails to sink despite repeated efforts”. This cynicism abounds in Kenya especially in the media.

It is the same skepticism that will greet the proposed ICC referendum. However, I believe there are bold men and women ready to face off with the likes of Gladwell Otieno and the ICC and restore honour, pride and dignity to this great nation. Count me in.