BY SAM ALFAN.
A City based activist has written to the president of the Court of Appeal Justice Daniel Musinga requesting an earlier date over a matter he filed under certificate of urgency.
Joseph Aura requested through his lawyer Harrison Kinyanjui for an early hearing date saying that the Kenya Government might ratify the Pandemic Treaty and the intended Amendments to the International Health Regulations, rendering the case useless.
Aura is apprehensive that the ratification might happen during the upcoming World Health Organization’s (WHO) convocation at the General Assembly in Geneva.
The event will be held from May 27, to June 14, 2024.
In the letter, Aura said the main issue in his pending application is that the cited legal instruments have not been subjected in the slightest manner to the processes elaborately laid down in the Treaty Making and Ratification Act.
He claimed that the instruments were negotiated in deep secrecy (with the document to be ratified being availed to the public only on when replying to him on April 24, 2024), which contains unconstitutional provisions and in sum would be inimical to Kenya’s Sovereignty.
“More pointedly, in spite of Article 55(2) of the subsisting International Health Regulations stating in mandatory terms that ANY amendments thereto MUST be circulated to Member States no less than 4 (Four) months prior to the ratification date (May 27th 2024), these intended amendments were NOT so availed (last date being 27th January 2024), and the negotiations went on as late as May 11th 2024 on the said amendments,” Aura said in the letter.
Lawyer Kinyanjui said in the letter that Aura cannot be faulted for coming to court in the circumstances on the late disclosures by WHO.
“Indeed, Kenya will not be alone in the intervention sought, as the Netherlands, Ecuador, South Africa, New Zealand and other States have raised this very same objection to the WHO. Once ratified under such circumstances, the Court’s findings will be of no use and the entire proceedings (and the Applicant’s appeal before this Honourable Court of Appeal will be reduced to a mere academic exercise. Since Kenya can at any time thereafter ratify the legal instruments,” he said.
According to Aura, after the Court has heard the proceedings on merit, the converse cannot be said if Kenya ratifies the said legal instruments with the stated infractions, and when later on the Court finds (as indeed it would) that no compliance at all was met of the set parameters in regard to the impugned legal instruments under the Treaty Making and Ratification Act.
He said to reverse the threatened ratification once executed would in itself require a monumental effort, not to mention the shuttling back and forth between Nairobi and Geneva to lodge the instruments of reservation, as well as the millstone (as it were), of Articles 26(1) and Article 46(1) of the 1986 Vienna Convention on Treaties, that would be thus placed on Kenya in regard to the impugned legal instruments.
“We attach herewith the World Health Organization’s notification on its website of the said upcoming Convocation of the World Health Assembly set for May 27th 2024 and 1st June 2024, in proof of the very thin deadline which the refusal by the Constitutional Court to intervene has precipitated. We therefore request very humbly for your urgent intervention as sought, given the monumental public interest stated and at stake,” he says.
The court president was informed Aura served the Respondents with our application, abudanti cautela.
In the case, Aura is urging the appellate court to issue a conservatory order prohibiting the state, by themselves, their servants, emissaries, plenipotentiaries, or agents, or otherwise howsoever-20 from signing, endorsing, acceding to, ratifying, or committing Kenya in any way or to give effect to the Pandemic Treaty and the amendments to the International Health Regulations and any aspect thereof at, or during the 77th World Health Assembly meeting in Geneva, Switzerland between 27th May 2024 and 1st June 2024, or anytime thereafter, until further Court Orders.
