Three Years after ICC Referred Kenya to Assembly of State Parties (ASP).

In September 2016, President of the ICC referred Kenya to the Assembly of States Parties of the Rome Statute ("ASP") for a finding of non-compliance under Article 87(7) of the Statute” in the case of The Prosecutor v. Uhuru Muigai Kenyatta.

Typically, the ICC primarily relies on State cooperation but lacks enforcement or punitive repercussion on a member-state that fails/declines to cooperate. The Court can only make a finding to that effect and refer the matter (concerning non-cooperation) to the ASP and the Security Council. This measure, as was taken against Kenya was also meted against Jordan for alleged failure to cooperate. Upon the indictment of Al Bashir in 2009, the ICC required member-states to arrest the Sudanese President should he step in the country signatory to the Rome Statute. This direction was in line with the cooperation obligation under Article 86 and 91. African countries including, Kenya, Chad, and South Africa did not failed to arrest Al Bashir. The ICC condemned the failure but, due to lack of an enforcement mechanism nothing more could be done by the Court.

In 11^th December 2017, Pre-Trial Chamber II of the International Criminal Court ("ICC" or "Court") found that the Hashemite Kingdom of Jordan, a State Party to the ICC Rome Statute since 2002, failed to comply with its obligations under the Statute by not executing the Court's request for the arrest of Omar Al-Bashir and his surrender to the Court while he was on Jordanian territory attending the League of Arab States' Summit on 29 March 2017. The Chamber decided to refer the matter of Jordan's non-compliance to the ASP and the United Nations Security Council ("UNSC"). Jordan appealed against the decision to the Appeals Chamber of the International Criminal Court but the Pre-Trial Chamber's decision was affirmed on 6th May 2019.

 

Almost three years after Kenya's referral to the ASP, nothing has come out of it. Now, we continue waiting!

#NLMJke - Did you know that through a TWEET, States can comply with cooperation obligation under the Rome Statute? See Report of the ASP Bureau on Non-Cooperation.

EZEKIEL MUTUA vs. CARTOONS

Digital migration might have succeeded, but the "Single-National Channel" Era lives on in the Moral Crusader!
Almost Everything Ezekiel Mutua aka 'KFCB' does that catches our attention seems to be in reaction more than action-based. The latest Cartoon stunt was no different. At what cost, though?
The only sure way to censor and monitor every single content out there is to revert back to the 1960s!
  

EZEKIEL MUTUA vs. CARTOONS (The Moral Crusader is HERE to save us!): https://t.co/JibaWYszLI 

— Camillah Agak (@KnightCamila) June 18, 2017

ICC on Katanga Case: Oh, the things I Hear!

A 131 page decision (in french) on awards to victim of crimes by Germain Katanga was delivered last month. The initial 16 year sentence was passed on March 2014. So, it took almost three years for victims to be given $250 (KSH 250,000 roughly). Now, the calendar is marked to follow up on how the awards will be implemented.
Coming from a society that is marred with a negative outlook at the existence of ICC, it is imperative that the implementation works. Or in the least, seem to work. It has to. Word on the street (well, more like_on a bus) already, is that some victims might not get their fair share as the system is bound to face some hitches either at ground level; or right from the top. The dates of the order, and decisions of the court was also thrown into the mix. Apparently, it is suspicious that the order was given over a year after the accused completed his sentence (January, 2016). But, that's not sixteen years, you say? Well, it was reduced. Years already spent in remand also deducted. Another theory was that, the good court was trying some damage control after a number of threats by African states to pull out of the Rome Statute.
 " It seems like they're all ganging up on us. Let's throw them a bone. Then again, we can't just neglect all these victims. $250 each should cover it!"

One hit that was trying the hardest was that both the sentences being in March can't have been a coincidence. That minds have already been made up on these things, and dates too. Only a naive person might take it as due process.
Next thing I know, the conductor is hitting the side of the matatu so hard and signaling me to alight. I had reached my destination.  Indeed, I was quite surprised that people were even talking of these kinds of things. Most of it was banter, but still. One of those conversations that you somewhat wish to continue with the strangers just to hear how it ends. Before Uhuru-Ruto cases were taken up by ICC, barely any ordinary mwananchi had heard of this Court. Now everyone is an expert on all-matters-ICC.

                                      (Shot of excerpt from ICC Twitter page)

I had just eavesdropped on a conversation for about 12 minutes. If those were the thoughts of two, three individuals on a random matatu, I wondered then, how people in DRC Congo felt about the outcome in Katanga. The much I know about law led me to believe that this order and earlier decisions on the case were, well, fair. Justified, maybe. Clearly its not about how I understood it. That little banter gave an insight to the perspective I had completely ignored. 

What to watch out for in 2017!!

So, 2017 is here with us! I can’t help but focus on what needs to be watched out for in the coming 12 months. Not sure what you have lined up but I have a list of my own. Note, these are not new year resolutions. Just things that anyone who lived through 2016 might keep an eye out for. Randomly listed, here goes:

1.      Kenya general elections

Will it be Jubilee or Cord, or maybe even a surprise twist president? If a fellow Kenyan is reading this, you probably know that there is a higher chance for a camel to go through the eye of a needle than anyone other than one from jubilee or cord to bag this. Of course anything can happen in a democratic society, but I wouldn’t bet on it. The incumbent, his H.E Uhuru Kenyatta is Jubilee Party’s flag bearer. CORD still insists on remaining all mysterious. At the back of our mind though, we know Hon. Raila Odinga stands a better chance than anyone else. Elections is still months away. If at all it is to happen this year.  The main players already have tricks up its sleeves (no pun intended) to favour them: an ongoing pursuit foolproof electoral laws, party alliances, mass campaign drives etc. It is going to be a busy year for #KOT, ohh the memes. After all is said and done, the most important thing is to have a fair, credible & transparent election for everyone involved to peacefully move on no matter who wins.

2.      Global war on terror!

The first headline in international news this new year was been the night club shooting in Istanbul that left at least 39 innocent people dead. Turkey has officially named it a terrorist attack. A manhunt is currently underway for the unknown attacker. Despite the fact that Turkey is vulnerable target to terrorism, it has been said time and again that it can happen to anyone. It is practically impossible to prevent every single attack but if a concerted effort is made by everyone, then a lot can be done to stop terrorist. This includes discouraging islamophobia or perpetuating notions associating terrorism with Islam. We don’t need to see media outlets trip over themselves trying to link every terrorist to ISIS or mental illness. Nub a terrorist, subject him/her to the necessary protocol and close that chapter. There will never be an excuse solid enough for anyone to walk into a crowded place and brutally murder others minding their own business.

3.      Out goes Ban Ki-Moon, in comes Antonio Guterres

After 10 years as UN Sec Gen, Ban Ki-Moon laying down his mantle of service. Mr. Guterres will have to fill really big shoes. He will get to form opinions on matters that constitute threats to maintenance of international peace and security. For the next five years, Antonio Guterres gets to act as what U.S president Roosevelt described the “world moderator”. He has notable experience working with the UN but the international community is at a place where one would need really thick skin and a lot of coffee to be handle this office. North Korea is constantly on one nuclear test after another, terrorism is taking the world by storm, refugee crisis on an all time high, and this man Donald Trump, the next president of US, so help us God. I personally feel 5 years is not really enough for such a role.

4.      Samsung mini toasters

After the Samsung galaxy S7 train wreck, waiting to see how its next upgrade will do. Seeing the expensive devices burst into flames just made me hold on tighter to my Chinese model (probably a kid’s homework). It is undeniably interesting to keep up with latest mobile tech updates especially the competition between Apple, Samsung and well, the rest <cough> infinix>> Ahem. It would really be nice Samsung tried to coming up with original innovations and not “copy paste” from competitors. What’s with the airpods?  Samsung ought to have tried some mystery for it upcoming S8, you know, maybe make one wireless earpiece for one ear and maintain the good old design for the other ear. This might have been hilarious enough to help since no one ever takes the (L) and (R) on earphones too seriously.  Now, just throw in the USB-C while you’re at it. We know the drill.

5.      ICC’s next move. Survival of the fittest

the Court had a pretty rough 2016. From, threats of withdrawal by some of its members (including Gambia, home of the current chief prosecutor); reduced confidence in its ability to execute its mandate by the allegation that it targets African countries; A tight budget in a crucial time.  It wanted a 7% increase of its annual budget so as to try to get out of the woods, but got only got 3%.  This year, we will get to see whether the withdrawal threats from Kenya, Philippines, Burundi South Africa holds water and what The Hague based Court will do to overcome these not so slight road bumps. So, what is it doing now? I understand (and you can fact check this. I don’t run a gossip blog oh) that it plans to broaden its scope to prosecute crimes that resulted from illegal land grabbing & environmental destruction. Then, there’s the recent vote by the UN for investigations (that can take months) into “possible” war crimes or crimes against humanity in Syria... which is NOT in Africa. Over 400,000 deaths later but it is still “supposed”. If they get something there, UN Security Council might refer the case to ICC. In as much as I support this whole nationalism of countries intending to withdraw, it is however hard to ignore the looming dark cloud subtly shouting that these intentions are more political than humanitarian. The fate of the ICC is not yet a cut-clear case. The challenges it is facing might have dire ramifications but hope 2017 throws it a bone.

6.      And the ramifications of a Donald J Trump presidency

There’s no way I was going to leave this one out. Am sure Trump is counting the days until he takes office. Needless to say, I’m curious to see if the constant twitter rants will be implemented. 2017 is important because it will be the ground base for what his term might look like. Am certainly not on the edge of my seat as I had been when it first dawned on millions of pro-Hillary  that the glass ceiling will remain intact a little while longer.

7.      Anything in between.

I cannot possibly exhaust this list. Awards, surprises viral internet sensations and other things not carried over from 2016.

Time to take this head-on. 

Bill Overview: Dropping out of school may no longer be an option for child parents

Will this proposed law put to rest the issue of girls dropping out of schools due to early pregnancy?

1      Where a child falls pregnant or a teacher or person in authority within the school has reason to believe that child may be pregnant, the matter shall be referred to the principal of the institution. The principal shall refer the child to a medical institution for medical examination and such other examination as may be necessary to determine the status of the child.

2     The school shall provide the necessary counselling services to the pregnant child and to her parents or guardians regarding management of the pregnancy, the provision of support services to the child and the parents to ensure the child’s emotional stability and well-being of the child during and after her delivery and the importance of continuing with her education

3      Every girl who falls pregnant and drops out of school or is of school going age but falls pregnant while out of school will have the right to be re-admitted of enrolled into an institution of basic education. She will also have the right to REMAIN in school and receive the necessary support to continue her education and participate FULLY during their pregnancy or as a parent student. A one-year maternity leave is also proposed, thereafter the child will have to produce a medical report declaring fitness to resume studies.

These provision are the ones that stand out most in the Care and Protection of Child and Parents Bill (2016). The apparent rise of early pregnancies in our society has seen many girls drop out of school. A lot of stigma and shame usually follows the girl throughout. It may be considered a taboo to have a bun in the oven when in school. The administration is usually quick and unhinged in sending girls packing. These girls will be used as bad examples of how ‘decent ladies’ should not behave up until a new batch of girls are found expectant, then the cycle is refreshed. It might be too early to bet on the November 02/16 Bill being passed into law. This is because it seemingly puts too much responsibility on the institution as pertains to how a child’s early pregnancy should be handled. The government also doesn’t assume a very active role other than formulating policies. It has been said time and again that most parents have made school administrators their co-parents, so, in as much as the child needs to be protected during this time, the guardian or parent has to have a primary role as well.

The main aspect to take home from this Bill being passed is that young girls will no longer be denied access to education merely because they are pregnant. I remember candidates in boarding schools expecting (no pun intended) to sit national exams were forced to leave school and required to make arrangements on how they were to complete their exam. When coming to sit the exams, other students would literally stop in their tracks to watch them make an entry into the school compound. The long walkway that led to the classes did little lessen this tension. Some students with no shame at all would point right at their colleague’s belly and gasp in awe. One would think that something completely unnatural happened.  Having the student become part of the school program would really help her and the rest to be mentally resilient and enable the girl concentrate on her education. 

The bill also provides that no girl will be compelled to undergo any medical examination where she refuses to do so [Sec 10(3)]. How I wish something like this existed during my time in school. Every girl who has gone through the typical 8-4-4 system must have experienced that “special” day when the entire student body (In an all-girls school) would be tested. 

When I say tested, I don’t mean the usual pee-in-a-cup-pour-on-a-stick method. It was all manual. Done by the school nurse. The physical and stomach presses lasted only a few minutes but was uncomfortable as hell. I asked around and it is still being done in schools around the country despite there being a huge margin of error, when applying this method. The catch to not undergoing an examination is that the institution will not be held liable for any consequences that results from the failure by the child to undergo the same. Sounds fair?

There’s also the issue of parents/guardians wanting nothing to do with the girl. To address this, the bill proposes that a parent or guardian will not be discharged from their responsibilities regarding the pregnant child and will collaborate with the institution for basic education in supporting and monitoring the health of the child. It might take some time before some of the provisions of this bill are divested into society, if at all it is passed.

Here’s a run-down of its provisions.

·         It not only gives an expectant girl child but also child parents an opportunity to access basic education. A child under the bill to be one under 20 years old.

·         A child will continue her studies even after it is determined that she is pregnant. Be allowed to make up for missed classes etc.

·         A child will not undergo medical examinations against her will.

·         The institution of basic education (IBE) will handle the pregnancy of a child with confidentially.

·         Any information about the status of the child will not be divulged to a parent or guardian by the IBE without consent of the child.

·     Parents/guardian will collaborate with the IBE in supporting and monitoring the healthcare of the child, and ensure she continues with her education

·        Before returning to school, it is to be ensured that the child is fit to resume her studies and the welfare of the newborn baby is also safeguarded.

·         Responsibility of a parent/guardian will not be discharged by reason of a child’s pregnancy.

·        The National & county government will formulate policies for re-admission, and prevention of drop-outs.

·      The child will resume her studies where she left off, and is not to be discriminated against, or excluded from interacting with her peers or engage in activities that form part of the school program.

·      Refusal to re-admit a child amounts to an offence liable to a fine not exceeding Ksh. 500,000 or imprisonment of not more than six months or both.

·       The Bill also proposes establishment of care centers for children younger than 3 years of age. The county government is to oversee and facilitate the care centers’ establishment, registration, licensing, inspection etc.

Implications of Brexit

By now, the dust on the internationally watched vote by Britain to exit the Europen Union (Brexit) has settled. Views & Woes have been made, resignations rendered and protests erupted then gradually abated. What remains is to examine its means for the modern world as we know it and whether UK will initiate the withdrawal process. After the vote, there was immediate pressure from the President of the European Council Jean-Claude Juncker, that it is in the best interest of UK that they finalize on the exit immediately.

It is worth noting that the referendum was non-binding and merely advisory. This is essentially what was claimed by the 48% that voted to stay. Essentially, the UK still has an option of staying in the union. It would however seem like a complete waste of process and resources to ignore the need of the vast majority. The 52% voters who want the exit effected.

The European Union much like the East African community was established to facilitate free trade, free movement and good relations among European States. Before this, different sates had different policies that impeded their relations with each other. The goal of the Union was to harmonize laws in order to reduce such conflict.  Cooperation developed to the extent that there is a common currency (Euros) for members of the union. Being in such an arrangement meant that members shoulder gain and loses at equal footing. Richer states would be disadvantaged. For example, if that was the same arrangement in EAC region was hit by a recession, Kenya, which is seemingly the powerhouse of the region, will suffer more than the others.

Britain joined the European Economic Community on 1 January 1973, along with Denmark and Ireland.

In as much as this was beneficial to the UK, it brought about a set of problems. It for example, started struggling with immigration. Since its join, people flocked the state in search of greener pastures which saw to a rapid population increase. The current influx of migrants from war torn Middle East also does little to salvage the situation UK might have thought it was in. Country A, say, is being coerced to allow migrants in the thousands. Country B which is watching, knows that its turn is approaching once A is filled to capacity. So, what does B do? It leaves the Union to prevent those future obligations.

Was this Britain's notion of  being in the EU..?? You judge!

This is not a conclusion that Europe’s immigrant crisis might have triggered Brexit. Britain might have thought that being in the EU does it more harm than good. In 2015 the decision to exit the union was first brought.

Now that there is a majority vote to leave the EU, the world is watching for the initiation of due process to formally withdraw. Article 50 of the Treaty of the European Union (which by now, must be the most read article worldwide) summarily provides that:

"Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements". Although it calls for a negotiated withdrawal between the seceding state and the rest of the EU, if no agreement is reached two years after the seceding state announced its intention to leave, it would cease to be subject to the treaties anyway (thus ensuring a right to unilateral withdrawal). Britain, known for having an unwritten constitution clearly did not have to struggle on choice of appropriate means to exit. So, if Article 50 is invoked today, the process might be concluded in 2019. Unless Britain decides to stay and stops holding the rest of the union by the throat, then anytime (be it in months or a year’s time) they decide to formally withdraw; then, their relation with EU will be running on a 2year timer.

Since the referendum was conducted, protests have arisen from pro-stay Brits condemning the exit. It is not yet clear what long-term implications Brexit has but the EU Treaty guarantees the continuity of rights and obligations of the European citizens belonging to a new state arising from the democratic secession of a European Union member state. It is however, highly unlikely that those who voted against Brexix would want to form their own state and remain under the wings of EU. Highly Unlikely! Additionally, Brexit could remove rights enshrined in the EU treaties - unless the UK agreed to keep them under a new settlement with the EU.

If at the end of the line, Britain decides that the exit was a terrible idea and it wants in again, it will have to apply to join like any new state. This is also a fathomable prediction given that most young people voted to stay. Statics show, most elderly people voted to exit. It may then lie on the young people to bring it back (decades later) in case the exit is finalized. Presently, knowing that historically, Britain doesn’t stay in one place at a time for too long, we might just live to see the BREXIT come to pass!

 

Please take us back.. we did not mean to BREXIT :(

Last Lap That Is 2015

So today marks the beginning of the end of 2015. Is it just me or this year flew by too fast? January feels like yesterday. And no, I am not going to ASK about how many of your new years resolutions got struck of the 'to do list'. Or rather the to-do-for-the-first-week-of-January list.

We all still have a whole Seven-Hundred-and-Twenty hours to do what hasn't been done all year. See what I did there? Tried making the remaining time look much longer. That was a total fail!

If you accomplished  every positive thing in your list then, good for you!! The world needs you! Many, many more like you. For some, a month-ish is a long time to get some things done. Shake things up a bit to avoid feeling like a year just got completely wasted; or have an answer for when people ask about your 2015 accomplishments.
The rest  who see it like I do, last days of the year that will go by even faster than the other 335 until the final hour to another new year,  just push any remnant resolutions to 2016 like a great percentage of humans do every other year. No one will judge you. I know I won't.

It has been quite a year. A  number of highlights topped by the Pre-Bar Exams cancellation. The exam now water under the bridge for anyone who joined law school prior to September 2012. This is quite a huge highlight because the most immediate and distant future revolves around it. I do not know what Kenya School of Law was trying pull but at least that's over. The general standard of legal education might have dwindled  a bit over the past few decades that might have seen to the need to separate chaff from The wheat. Introducing the exam, however seemed like a number cut-off measure of some sort. There are too many lawyers than the system can handle. Everyone wants that crucial diploma certificate. An entrance exam only made the proverbial light further away in the already long (not dark, just long) tunnel of one's quest for legal education.

Some 'lowlights' [If that's even a word. scrabble] too. Losing an iconic family patriarch (Jaduong') Richard Agak, may he rest in peace.
Then there is the Council for Legal Education giving as a run for our degrees.
Highlights, lowlights and well, other moments that, come to think of it, are just blank gaps between one day and the next. Moments between when there is no mention of terrorists wrecking havoc all over the place, planes crashing, Obama and pope coming to Kenya or seeing the ocean for the first time. Not ordinary life per se. Time to reinvigorate. I bet people who meditate might have a word for that limbo.

Best part is, we get a whole new year for a fresh start, make right what was wrong, make new goals [Chelsea fans, I am not pointing fingers], accomplish procrastinated ones, or for workaholics, rest a little. Hopefully that is what the extra day is for. Yes, 2016 is a leap year. Mind blown!