Motion to Withdraw Kenya from the ICC is Injudicious
Deputy President William Ruto begins his trial at the International Criminal Court (ICC) in The Hague on September 10th 2013, just a few days after his Jubilee Coalition MPs passed a parliamentary motion to withdraw Kenya from the Rome Statute, which set up the ICC. Some of the reasons for the pull-out include “regaining freedom” and defending the “sovereignty of the nation of Kenya.” The Court is deemed by these MPs as a “neo-colonialist” body that should be consigned to “the cesspool of history.” Another MP claimed that the ICC was modeled to “arm-twist” Africans and “pander” to Western interests. This move has elicited anger among victims of the post-election violence (PEV) which took place in 2007-08. Both Ruto andPresident Uhuru Kenyatta face serious charges of crimes against humanity allegedly linked to the PEV.
Amnesty International strongly criticized the motion to withdraw Kenya from the ICC and its Africa director Netsanet Belay stated that: “This move is just the latest in a series of disturbing initiatives to undermine the work of the ICC in Kenya and across the continent. Essentially, a withdrawal would strip the Kenyan people of one of the most important human-rights protections and potentially allow crimes to be committed with impunity in the future. … This also sets a dangerous precedent for the future of justice in Africa.”
In February 2009, Kenyan MPs voted against a government-sponsored motion to set up a special local tribunal as recommended by the Kriegler Commission, which investigated the PEV. The former Grand Coalition Government did not pursue the PEV perpetrators or resettle all the internally displaced persons (IDPs). Moreover, there was no willingness to establish a domestic tribunal. In an article by the Voice of America (VOA) on January 10th 2011, Director of International Center for Policy and Conflict, Ndungu Wainaina, was quoted saying: “The Kenyan government has never set up a credible and tested witness protection mechanism. Because that is a precondition in terms of being able to carry out successful prosecutions and a fair trial for that matter.”
During the presidential campaigns earlier this year, the ICC narrative was used by Uhuru and Ruto to endear themselves to supporters by contending that Western powers did not want them to lead Kenya. According to Comfort Ero, Africa director for the think tank International Crisis Group, “This ICC indictment against Kenyatta and Ruto has forced them together to, in a sense, use the elections as a referendum against the ICC, accusing the international community of interference in the election process and using the election campaign to mobilize support in their defense.” (Cited in Kira Kay’s ‘Kenya’s Travails’ at stanleyfoundation.org).
Implications of a pull-out
Legal experts feel that if Kenya succeeds in pulling out of the ICC, other African member states may follow suit, thereby defeating the purpose of the Court. Zambian Justice Minister Wynter Kabimba, has supported Kenya’s move and urged other African countries to reject the ICC. He claims that ICC is meant to humiliate African leaders. Uganda has also backed Kenya and the country’s Government spokesperson, Ofwono Opondo was cited in the New Vision newspaper saying: “Kenya voted to join the Rome Statute by themselves and they are free to withdraw.” According to him, there has been no fairness in handling the cases of the accused leaders. “Uganda has made its position clear. Our disappointment is with the way the indictment against the Kenyan leaders was selectively done. Perhaps they wanted to make them withdraw from the race but the Kenyan people stood their ground by voting them in. The withdrawal (from ICC by the Kenyans) is an indictment to the credibility of the ICC,” said Opondo.
The African Union (AU) has accused the ICC of “hunting” Africans because of their race. Out of the countries that have ratified the Rome Statute, 34 are in Africa. The United States is not a member of the Court and there are growing calls by people across the world, to have former president George W. Bush and former British prime minister Tony Blair, charged at the ICC for leading the war on Iraq in 2003. Former British foreign minister the late Robin Cook once said: “If I may say so, this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.”
In an article titled: “Is The ICC Fit For Purpose?” Dr. David Hoile, a public affairs consultant, analyzed the supposed ICC bias towards Africans. “The Court has courageously gone after only those people it has seen as being weak and unprotected by the UN Security Council. The ICC, for example, has turned a blind eye to self-evident human rights abuses in Iraq, Afghanistan and Gaza. It has instead chosen to indict 27 Africans. And even in five of the African countries the Court has selected for action, it has been politically selective as to which human rights abuses it chooses to pursue. This has made a mockery of the Court’s claims to bring about an end to impunity.” (See newafricanmagazine.com March 01, 2012).
Withdrawing from the ICC will not help Uhuru and Ruto, since the Rome Statute does not recognize an accused person’s political status or station in life. Gabrielle Lynch, Associate Professor, University of Warwick asserts that: “The Rome Statute, which established the ICC, removes the immunity that a serving head of state might otherwise enjoy under national or international law. As Kenya is party to the Rome Statute, even if Kenyatta and Ruto are elected as president and vice president, they will still be subject to the rulings of the court. The ICC’s requirement for defendants to attend hearings at The Hague on a full-time basis would severely impede the ability of an indicted elected official to deploy the duties of their office. In past cases where heads of state or government have been indicted by international courts, they have stepped down from their positions of authority while their trials take place. It is not possible to predict how long the ICC trials of Kenyatta and Ruto will take, but past cases at the court have taken at least three years to complete. There is a significant chance that the trials will still be an issue for Kenya’s general elections in 2018.” (In: Africa/International Law February 2013 – chathamhouse.org).
According to Dr Obote Odora, who is a consultant in International Criminal Law & Policy, legal implications could arise in the future if Kenya withdraws from the ICC. For instance, if the sitting government refuses or has no domestic capacity to deal with transnational crimes such as arms trafficking, human trafficking and terrorism (which may constitute crimes against humanity), where will the victims turn to for help? The motion to withdraw is being promoted by a section of politcians who have nothing to do with other Kenyans who still believe the Court is important. These Members of Parliament are the “Faces of Impunity.”