The pressure on the government to start the process of withdrawing from the Rome Statute will increase further after the Senate Tuesday evening joined the National Assembly in demanding Kenya abandon the international treaty.
Like their National Assembly counterparts, senators from the Cord coalition walked out of the chamber minutes before the motion was put to the vote, in effect declining to be part of it.
They had however put up a robust defence on the floor, arguing that the motion was pointless and would do nothing but annoy the International Criminal Court and put Kenya in bad light internationally.
In its motion, the Senate also wants the government to restart the attempt to have the cases deferred back to the Kenyan courts, which Jubilee said is now reformed enough to handle them.
Majority Leader Prof Kithure Kindiki, who authored the motion, has said he would craft it into a petition and lead a delegation of senators to present it to the president of the ICC and the United Nations Security Council.
Jubilee argued that Kenya is not a banana republic and that the Rome Statute that established the International Criminal Court was designed for countries considered ungovernable.
As he introduced the motion, Prof Kindiki, who was initially one of Deputy President William Ruto’s lawyers at the ICC, said the court cannot be trusted to deliver justice.
“What was created as an institution for justice has been turned into a vehicle for pursuing international politics in the most rudimentary, questionable and capricious manner,” he stated.
He described the ICC Prosecutor as a rogue prosecutor who goes from country to country unsupervised ‘wrecking people’s careers, tarnishing names and destroying individuals’ lives without accounting to anyone.
Prof Kindiki said Kenyans “have failed as a nation to protect their own.” “Never again should we expose our people to such degradation and humiliation as is happening now.”
“There is nothing as humiliating, painful and embarrassing as a nation watching its three sons being harassed, tormented and looked down upon simply because there are things we didn’t do and we are busy playing politics,” he stated.
He said the ongoing proceedings at the ICC represent the darkest moments in independent Kenya.
“Kenyans must wear sack clothes and mourn that the dignity of its nation has been thrown out in tatters,” he said.
The debate took long to start and one and a half hours after the Senators settled in their seats, sideshows and points of order had taken up most of the time, denying the motion’s supporters the chance to get a momentum going.
There was a challenge before the debate could start on whether Speaker Ekwee Ethuro was right to convene the special sitting, whether the motion was urgent and necessary and when Prof Kindiki got going, on whether Gladwell Otieno’s name ought to have come up.
When she rose to second the motion, nominated Senator Beatrice Elachi argued that most of her colleagues in the Senate “benefitted from the post-election violence” because they were appointed to government after the National Accord in 2008.
She argued that while it was important to appreciate that “We did wrong in 2008 but in between we have institutions that have begun working.”
Led by Minority Leader Moses Wetang’ula, Cord argued that it wouldn’t be proper for Kenya to withdraw from an international treaty.
Cord senators argued that the Rome Statute is a deterrent and was the reason there was no chaos in Kenya despite the fact the results of the General Election in March were contested.
Migori Senator Wilfred Machage’s amendment to delete the part where the Government would be required to start the process of withdrawing from the Rome Statute was defeated.
Tracing the path that led the Kenyan cases to The Hague, Mr Wetang’ula said he was committed to having a local trial but was saddened when Parliament twice rejected the Bill to form a Special Tribunal.
He said Yugoslavia, Sierra Leone, Democratic Republic of Congo and Sudan are not signatories to the Rome Statute yet their leaders have been indicted by the International Criminal Court.
Arguing that the motion wouldn’t have an impact on the case, he provoked a furious reaction when he said, “Courage is not courage if you use courage to knock your head against the wall. It is called stupidity.”
Mr Wetang’ula said that given President Kenyatta and DP Ruto have been collaborating with the ICC, it was rhetorical that the motion would propose that Kenya continues cooperating and at the same time withdraw from the Rome Statute.
He said the motion would only foul the relationship with the ICC rather than make things better for the suspects.
Meru Senator Kiraitu Murungi however insisted that Kenya should exercise its power to withdraw from international treaties if it feels uncomfortable with them.
“People talk about agreements but forget that colonialism was introduced in Africa through agreements. Do you not remember the Maasai agreements?” he posed. “What we have here is an attempt to recolonize Africa.”
Mr Murungi said the is ICC funded by countries under a project known as “promoting the rule of law abroad” and is aimed at countries that have a dysfunctional police, judiciary and laws.
Kenya does not belong here, he said, and thus the need to leave the Rome Statute.
But according to Siaya Senator James Orengo, the better option for now would be to lobby the African states for amendments to the Rome Statute as it can now be done.
Busia Senator Amos Wako repeated an assertion he made as Attorney General that the threshold for evidence has not been met in the ICC cases for a conviction.
Mr Wako said the fact that Mr Kenyatta and Mr Ruto have elected to collaborate with the court convinces him they are innocent and hoped that the court would take judicial note of that matter.
“I believe they will be acquitted. Let them proceed in that manner,” said Mr Wako.
“This motion, particularly on withdrawal…will not stop the Security Council from referring such cases to the International Criminal Court,” he however added as he opposed the motion.