Friday 5 October 2012

[wanabidii] Re: OKIYA Omtatah in court to block ICC cases against UHURU, RUTO, MUTHAURA and SANG’

Attached hereto are copies of my ICC Petition and Application. 

The Court certified the matter urgent & ordered me to amend my Petition by removing the 2nd to 12th Respondents, and then serve the AG. I have complied.

Hearing on Wednesday, October 10, 2012, before Justice Majanja.

Kindly, may those who wish to debate the issue read the attached docs beforehand so we can have an informed debate. The main issues for determination are:

1. Can the Executive and Parliament cede away the Sovereignty of the People? Since the ICC takes away Kenya's sovereignty in certain aspects of criminal law, can such a treaty be ratified without the approval of the people? For example, the people of the Republic of Ireland amended their Constitution by inserting article 29.9, to allow their Government to sign the Rome Statute. The Twenty-third Amendment of the Constitution of Ireland was necessary because the Rome Statute granted to the ICC certain powers the Constitution, as it stood, vested exclusively in the organs of the national government, just as it is with Kenya. Hence, the Constitution of Kenya, 2010, must be amended to allow the Kenyan State or the Government of Kenya to ratify the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998. And since the amendment to the Constitution will affect the sovereignty of the people, it can only be done via a national referendum. As ordained by Article 255(1)(c), amendments relating to the sovereignty of the people can only be approved via a national referendum. 

2. Can treaties amend the Constitution? My position is that they cannot, since the Government of Kenya can only act within the competences granted to it through the Constitution and amendment to the Constitution, which amendments require the strict adherence to the amendment procedures in Articles 255, 256, and 257 of the Constitution of Kenya, 2010. If the Rome Statute is left standing, without ratification via a referendum, then we are saying that treaties can amend the Constitution in contempt of the amendment provisions in Articles 255, 256 and 257. 

From case law in the U.S.A, federal government cannot enter into treaties that are incompatible with the U.S. Constitution.  Doe v. Braden (1853), for example, asserts that U.S. courts have a legal "right to annul or disregard" the provisions of a treaty if "they violate the Constitution of the United States," and the Cherokee Tobacco (1871) decision declares that "a treaty cannot change the Constitution or be held valid if it be in violation of that instrument."  In Reid v. Covert (1957), the Court reaffirmed that it "has regularly and uniformly recognized the supremacy of the Constitution over a treaty," and that "there is nothing in [the Constitution's] language which intimates that treaties do not have to comply with the provisions of the Constitution.  Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. . . . It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire constitutional history and tradition--to construe Article VI [re treaties] as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.  In effect, such construction would permit amendment of that document in a manner not sanctioned by the amendment process]."

More specifically, the Supreme Court has said that the federal government cannot enter into treaties that relinquish the constitutional rights of American citizens.

Ditto for Kenya vs. the Rome Statute that seeks to take away aspects of our sovereignty. If we wish to ratify it, let's do so through the front door of a referendum and an amendment to the Constitution. No backdoor through treaties signed by politicians.

Regards,

Omtatah



From: Maurice Oduor <mauricejoduor@gmail.com>
To: progressive-kenyans@googlegroups.com
Cc: uchunguzionline@yahoogroups.com; Africa-Oped <africa-oped@yahoogroups.com>; kenyaonline@yahoogroups.com; WanaKenya <Wanakenya@googlegroups.com>
Sent: Friday, October 5, 2012 6:02 PM
Subject: Re: [PK] OKIYA Omtatah in court to block ICC cases against UHURU, RUTO, MUTHAURA and SANG'

Oh my God !!! Okiyah? Doing this? Something has changed hands nyuma ya
pazia. Okiyah is not doing his in defence of the constitution.

Courage



On 10/5/12, Kuria-Mwangi <kjmwangi@gmail.com> wrote:
> Wams
> Seems like Uhuru has many defenders. Here comes our good friend Omtatah
> heading to court to get us out of ICC. Lets hear what he got to say
> otherwise UK and Ruto will surely like Omtatah and Courtenay Griffiths.
>
>
>  The Kenyan DAILY POST News <http://www.kenyan-post.com/search/label/News>
> 05:55
>
>
>
> <https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgZytC2UfMC6__DPEq9A44xNgveCE4JvJ8n9BN3Jbz9ma07cin8qU9kahU3fRuOKtAJRPSBzFv7NLbppfkKrNO09YOvzLvi6Eg-2vC90UfkBx45pdfkrIfI5RbMjfMu7YVZE5ciDKpitq8/s1600/omtata.jpg>
>  *Friday October 5, 2012 - *Civil rights activist Okiya Omtatah on Thursday
> moved to court seeking to compel the Kenyan government to pull out from the
> International Criminal Court (ICC).
>
>  In a suit filed under a certificate of urgency, Omtatah says there will be
> continued violation of the constitution if Kenya's ratification of the Rome
> Statute is not annulled by the court.
>
>  "The court is unconstitutional. It's not enough that the constitution
> states that "the general rules of international law shall form part of the
> laws of Kenya and that any treaty or convention ratified by Kenya shall
> form part of the law of Kenya under this constitution," he says.
>
>  He further states that the two clauses do not make the treaties part of
> the Kenyan constitution.
>
>  Omtata says the Rome Statute is an extra ordinary treaty which requires
> member states to cede their sovereignty in aspects of criminal law to the
> ICC.
>
>  However, the ICC is not those courts established by the constitution or by
> parliament.
>  Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto,
> former Head of Civil Service Francis Muthaura and radio presenter Joshua
> Sang have been indicted by The Hague based court and it may be a major
> reprieve if Omtata win the case.
>
> The case will hear on October 10.
>
> On Fri, Oct 5, 2012 at 9:47 AM, margaret gichuki <Wams2006@gmail.com>
> wrote:
>
>> **
>>
>>
>> Lawyer accuses UK of plot to bar Kenyatta
>>
>> Posted by BERNARD MOMANYI on October 5, 2012
>>
>> Kenyatta is facing trial at the ICC alongside three other
>> Kenyans/CFM-File
>> NAIROBI, Kenya, Oct 5 – A top UK lawyer has accused Britain of working
>> to block Deputy Prime Minister Uhuru Kenyatta from running for the
>> presidency in the forthcoming general elections.
>>
>> Courtenay Griffiths, in an opinion published in The Telegraph on
>> Friday under the headline 'The International Criminal Court is hurting
>> Africa,' argues that Britain is using a case facing Kenyatta at The
>> Hague-based ICC to block his presidential bid in favour of Prime
>> Minister Raila Odinga.
>>
>> "Britain does not want Mr Kenyatta to be President of Kenya. It sees
>> its interests as best served through the election of Mr Odinga in the
>> forthcoming contest, a peculiar position given Odinga's former support
>> for East Germany and Cuba (his son is named Fidel Castro Odinga). The
>> Western-educated Kenyatta appears a more obvious choice, had the
>> British not been involved in the incarceration of his father," said
>> Griffiths.
>>
>> The barrister who unsuccessfully defended former Liberian President
>> Charles Taylor at his war crimes trial claims the case against the
>> four Kenyans at The Hague is defective as the ICC has not directly
>> sourced witnesses.
>>
>> Kenyatta is facing trial at the ICC alongside former Civil Service
>> chief Francis Muthaura, Eldoret North MP William Ruto and journalist
>> Joshua arap Sang.
>>
>> They are accused of planning or financing the deadly post election
>> violence of 2008 which led to the deaths of at least 1,300 people and
>> displacement of thousands more.
>>
>> "Instead, it outsourced evidence-gathering to local intermediaries. In
>> the Kenya case, these intermediaries happened to be well known
>> associates of Raila Odinga, the current prime minister of Kenya, and
>> Mr Kenyatta's long-term political opponent," he said.
>>
>> Griffiths said Britain's support for the International Criminal Court
>> is wrong and undermines its credibility in African countries.
>>
>> The barrister argues that the foreign policy adopted by the UK to
>> Kenya is dangerous due to the appointment of Henry Bellingham as
>> Minister for Africa.
>>
>> "This is not a Frederick Forsyth novel, but the dangerous reality of
>> Britain's foreign policy towards Kenya" – Griffiths.
>>
>> "This is not a Frederick Forsyth novel, but the dangerous reality of
>> Britain's foreign policy towards Kenya. Henry Bellingham, our Minister
>> for Africa, is a close friend of Simon Mann, the mercenary who tried
>> and failed to orchestrate a coup in Equatorial Guinea," Griffiths
>> wrote in the opinion published on Friday.
>>
>> He said Bellingham has publicly supported the work of the
>> International Criminal Court that has so far only tried black
>> Africans, when, from Libya to Syria, there are many more victims who
>> still await justice.
>>
>> "Some would argue it is reasonable for countries to exercise their
>> power in foreign countries through legal means," he said.
>>
>> The lawyer said he is convinced that Britain's support for the ICC,
>> and in particular funding of the Kenya case, is seriously undermining
>> its credibility and influence in Africa.
>>
>> "The case against Uhuru Kenyatta, the Deputy Prime Minister of Kenya,
>> is of serious concern, not only because of the serious lack of
>> evidence against him, but also because of the methods used to obtain
>> this evidence," the opinion said.
>>
>> The view implies that the evidence relied on to nail Kenyatta was
>> sourced by individuals close to the Kenyan Prime Minister.
>>
>> Thus, "this case, which revolves around a single witness sourced by
>> those close to Mr Odinga, should set off alarm bells in the Foreign
>> Office."
>>
>> The opinion concludes that "for Britain to maintain its influence in
>> Kenya and therefore in Africa it needs to withdraw its support and
>> funding of the Kenyatta case."
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