By Fwamba NC Fwamba
During the 2010 referendum, over 67 percent of Kenyans overwhelmingly voted in support of the current constitution after being promised by the proponents of the draft constitution that contentious clauses would be reviewed after approving the draft to become law.
Itâ€™s a great opportunity for this country to achieve these amendments under the tenure of President Uhuru Kenyatta and Deputy President William Ruto given the two leaders rallied people against two opposing sides during the referendum.
While Uhuru was part of the group that supported the passing of the constitution with amendments to be legislated later by the parliament, Ruto led the opposing team that stood for amendments to be done before the passing of the draft constitution.
The â€˜Yesâ€™ group won but by consensus, it was generally agreed that necessary amendments including grammatical corrections need to be addressed through parliamentary legislation and where appropriate, citizen participation through referenda as provided for in chapter 16 of the constitution of Kenya.
After the victory of the supporters of the draft constitution, the â€˜YESâ€™ team appreciated the issues that had been raised by the â€˜NOâ€™ side and committed themselves to support efforts of amending the necessary clauses.
A number of provisions that do not appropriately represent the spirit of the constitution and aspirations of Kenyans were passed. The constitution was passed in haste because Kenyans did not want to miss another opportunity of getting a new constitution, a journey that had taken over two decades.
For that reason so many flaws were over looked. Chapter one of the constitution addresses the sovereignty of the people, supremacy of the constitution and the defence of the constitution. Article 2 of the constitution that addresses the supremacy of the constitution is self contradictory.
While Article 2 clause 4 states â€˜any law, including customary law, that is inconsistent with this constitution is void to the extent of the inconsistency and any act or omission in contravention of this constitution is invalidâ€™, clause 5 of the same article states ‘ The general rules of international law shall form part of the law of Kenyaâ€™ while clause 6 states â€˜any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitutionâ€™.
The provisions for the supremacy of the constitution imply that even international law provisions and treaties that violate or undermine the essential provisions of the constitution of Kenya are void. In general terms article 143 of the constitution of Kenya prohibits and protects the president or a person performing the functions of that office from prosecution during their tenure in office.
However, clause 4 of the same article which states â€˜the immunity of the president under this article shall not extend to a crime for which the president may be prosecuted under any treaty to which Kenya is party and which prohibits such immunityâ€™ undermines the spirit and purpose of article 2 clause 4 that addresses the supremacy of the constitution of Kenya.
Itâ€™s contradictory for the constitution of Kenya to claim supremacy against any other law but go ahead and yield to undefined international treaties that go against the constitution.
The spirit of the constitution provides that the president enjoys immunity from prosecution while in office and on the basis of the supremacy of the constitution, any international law or treaty that supports prosecution of the head of state or any person performing the functions of that office is invalid.
Both The International Criminal Court and the law that establishes it fail to recognize the immunity of a head of state from prosecution and thus that makes the Rome statute inconsistent with the constitution of Kenyaâ€™s provisions in article 143 clauses 1,2 and 3.
By prohibiting prosecution of the president, the drafters of our constitution were awake to the fact that subjecting a sitting president to a judicial process will put the country to ridicule and put the presidency to embarrassment and shame.
If this argument is the case locally, it beats logic that while weâ€™ll not want to put the office of the president to ridicule locally, weâ€™ll allow the same shame to be conspicuous on the international stage like in the situation of the Kenyan cases at the International Criminal Court.
This informs the position that clause 4 of article 143 of the constitution of Kenya was sneaked in by some unseen hand and must have been an after-thought by some interested parties to render article 143 of the constitution meaningless in protecting the president from prosecution while in office.
Some countries that prefect the United Nations Security Council; a benefactor of the ICC are themselves not parties to the Rome Statute. No civilized country can allow its sitting president to face trial anywhere!
Why should we be used as specimen for world super powersâ€™ political experiments?
In principle, the constitution of Kenya does not support prosecution of its president or any other person performing the duties of that office and its important for the international community to recognize this fact and re-examine their stand on the deferral of the Kenyan cases at the Hague in recognition of article 143 clause 1, 2 and 3 of the constitution of Kenya or support unconditional termination of the cases to help fast track the reconciliation process between the Kenyan communities.
At this stage, the cases at the ICC are doing more harm than good to national cohesion and undermining the efforts to unite different tribes of Kenya.
This should happen concurrently with the parliament initiating the process of amending clause 4 of article 143 because itâ€™s contradictory to the purpose of the provisions on sovereignty and supremacy of the constitution of Kenya.
Fwamba is the Leader of Kenya Young Voters Alliance.