This is all much noise about nothing.
Although you're within your right as any Kenyan to file a petition like this, it should take the court or the presiding judge Justice Majanja about 6 minutes to dismiss your petition as not based on any law upon which it can be granted.
While a thorough legal analysis of the questions you raise is not appropriate or necessary here (I may chose to blog more about it later) let me provide here oversimplified but cryptic answers which are accurate nonetheless and predictive of how I think the court would rule on the petition.
1. Can the Executive and Parliament cede away the Sovereignty of the People?
This is a wrong question to ask because it's primary objective is to appeal to emotions but competent courts hardly ever get taken by such appeals.
The question implies or insinuates that allowing the ICC to try the PEV suspects somehow is ceding away the sovereignty of our people.
That's false because Kenya has already ratified the Rome Statute and is thereby bound by it.
That being the case, the country has not "ceded away" its sovereignty but has given concurrent jurisdiction to the ICC in a scheme under which its sovereignty remains paramount, giving way only where the country fails to do what's necessary to protect its citizenry from crimes against humanity such as was in this case of the PEV suspects.
The answer is yes.
2. 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?
Not sure where you're coming from with this one but Kenya did not only ratify the Rome treaty in March 2005 as then required under the old constitution and the new Constitution clearly and unambiguously states in Article 2(6) that "Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution."
There is no need to here but I am sure Justice Majanja will lay out in detail other provisions of the Constitution and statutory law that apply in firming up this proposition and going against or providing the basis to reject the notion as argued in this question that we need a referendum to once again ratify the Rome Statute ratification which is obviously in effect as stated above.
Because this is the case, namely, there is no need to seek re-ratification of the Rome Statute because Kenya's ratification of the statute in 2005 is still valid under the new Constitution, it's irrelevant what the people of the Republic of Ireland did or did not do in their own ratification of the Rome Statute
3. Can treaties amend statutes?
The short answer is, no but this is an irrelevant question because no one is suggesting or can plausibly argue that the Rome Statute amended our constitution because it was our government which amended its constitution in ratifying the Rome Statute.
That ratification is valid as noted above.
This being the case, all citations and discussion of American laws discussing how a treaty cannot be in violation of the Constitution are irrelevant.
Justice Majanja should do the one and only legally correct thing and that is to promptly dismiss this petition, which is raising eyebrows why it's been filed to begin with but, that's a debate for another day.
Peace, Unity and Truth
Omwenga
On Fri, Oct 5, 2012 at 12:36 PM, Okiya Omtatah Okoiti <omtatah@yahoo.com> wrote:
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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