The ICC and Kenya

By: Dr. Charles Kambanda, PhD

THE REPUBLIC OF KENYA’S WITHDRAWAL FROM THE INTERNATIONAL CRIMINAL COURT (ICC) ROME STATUTE IS PROBABLY A SLIPPERY SLOPE FOR KENYA

Following the December 2007 presidential elections, the electoral commission of Kenya officially declared the then incumbent President Mwai Kibaki the winner. In the blink of an eye, Mwai Kibaki was unceremoniously sworn in as president.  The then opposition candidate Raila Odinga accused the government of electoral fraud and rejected the results.  The violent protests and demonstrations that followed left more than 1300 people killed, thousands raped, property destroyed, and at least 300,000 Kenyans forced from their homes.

The UN brokered peace accord saw Kibaki and opposition leader Raila Odinga agree to share power. Kenyan Cabinet, in conjunction with the country’s development partners, instituted a Commission of Inquiry into the presidential election violence.  A renowned Kenyan Justice Philip Waki led the commission. The Waki commission documented Kenya’s post-election violence and compiled a list of persons allegedly responsible for the violence. Justice Philip Waki Commission found out that some top government officials premeditated, planned and coordinated the post-election violence.

 In 2010, the Prosecutor of the ICC Luis Moreno Ocampo secured summonses for six Kenyans namely; Uhuru Kenyatta (then Deputy Minister , Henry Kosgey ( then Industrialization Minister), William Ruto ( then Education Minister), Francis Muthaura ( then Cabinet Secretary), Joshua Arap Sang ( radio executive)  and former police commissioner Mohammed Hussein Ali.  All were indicted for crimes against humanity.

Is Kenya’s withdrawal from the ICC President Uhuru Kenyatta’s political maneuver to evade his alleged criminal liability during Kenya’s infamous post-election violence?

When Uhuru Kenyatta and William Ruto became president and vice-president respectively, it was expected that the trio would use State apparatus to fight their ICC indictments and/or trial. On September 6th, 2013, the Kenyan parliament voted to “withdrawal” from the ICC Rome Statute.  All Cord-allied members of parliament (Kenya’s opposition members of parliament) stormed out of the Chamber in protest of the motion to withdrawal from the ICC Treaty. The opposition members of parliament argued that the move to withdrawal from the ICC was not meant to serve any rational purpose for Kenyans. The opposition parliamentarians insisted that Kenya’s withdrawal from the ICC was Mr. Uhuru Kenyatta’s political maneuver to avoid prosecution at the ICC for the crimes he allegedly committed.   The ruling political coalition – the Jubilee coalition – unanimously approved the “withdrawal” resolution to suspend Kenya’s links, cooperation and assistance to the ICC.

No presidential immunity for crimes of international concern

The ICC does not recognize presidential or top government officials’ immunity for international crimes. The ICC contends that the president of the Republic of Kenya, his vice president and other government officials who were indicted for Kenya’s post-elections must be tried.  President Uhuru Kenyatta has been lobbying for transfer of his case from the ICC to Kenyan courts but in vain. The ICC major argument for not transferring the case to Kenyan courts is that in a young democracy like Kenya, it is unlikely that a Kenyan criminal court sitting in Kenya would be independent. Secondly, Kenya’s municipal law grants presidential immunity to a sitting president.  Third, if the case was transferred to Kenya and there was no presidential immunity bar in Kenya, under the current Kenyan political environment, it would be impossible to get any Kenyan witness to testify against the president of the Republic of Kenya and other top government officials on trial.  The ICC stuck to their guns because transferring this case to Kenyan courts would be frustrating justice.  The trial for Kenya’s vice president (Ruto) and Sang is set to open on Monday, 9th September, 2013 at the ICC.

Kenya’s withdrawal from the ICC Treaty has no legal effect to the on-going Kenyan officials’ trial at the ICC.

When a court has jurisdiction at commencement of the case, that court has jurisdiction for all purposes in time and space unless there is proper transfer or change of venue. Under the ICC Treaty, State Party withdrawal takes effect after one year from the time of effective withdrawal. The president of the Republic of Kenya, his vice president, and other top government officials are accused of crimes against humanity which they allegedly committed in 2007/2008. Their criminal case commenced at the ICC in 2010. Since Kenya was under ICC Treaty obligations and duties at the time the crimes were committed, the ICC has jurisdiction over this case, Kenya’s withdrawal notwithstanding. In addition, even after the withdrawal, Kenya will stand bound by the ICC Treaty obligations and duties for another year.

Each state has a moral and legal right to withdrawal from an international Treaty but not for illegal purposes

The contractual nature of international Treaties allows any State Party to withdrawal from the Treaty if the Treaty so provides. A sovereign may not be coerced into any international duty and/or obligation. However, because the State is a custodian of virtues and protector of the common good, it is immoral and illegal for any individual citizen to use the State cloak to perpetuate or otherwise promote illegality. The Rome Statute allows member States to withdrawal. The Republic of Kenya is free to withdrawal from the Rome Statute. However, on its face, Kenya’s choice to withdrawal from the ICC is in bad faith. Kenya’s move to withdrawal is criminal because it is intended to protect the president, the vice president and other senior government officials from prosecution, conviction and/or punishment. Whoever voted for the “withdrawal” from the ICC – to the extent the scheme was deliberate to shield the suspect felon from prosecution, conviction and/or punishment – is an accessory after the fact.

Kenya is not the first State Party to withdrawal from the ICC Treaty. The United States, Sudan and Israel signed the Rome Statute in December 2000 but later withdrew their signature. Kenya’s withdrawal from the ICC is distinguishable. First, no other country has ever withdrawn its signature from the ICC Treaty after ratification. Second, no other country has ever withdrawn from the ICC for the sole purpose of protecting its president, vice-president or other top government officials from prosecution in an already commenced criminal trial at the ICC.  Was there undue influence from the president and vice president of Kenya for the Parliamentarian vote for withdrawal from the ICC? Why did the opposition walk out of the parliament in protest of the vote to withdrawal from the ICC? The alleged crimes were committed against Kenyans. The previous legitimate Kenyan government referred the case to the ICC for a fair trial in an independent international court.  Is Kenya’s new government decision to withdrawal from the ICC in good faith?

Kenya’s withdrawal from the ICC Treaty will probably have unprecedented diplomatic, political and economic glitches

Kenya’s withdrawal from the ICC Rome Statute, in the circumstance, is apparently an effort for the president to manipulate public institutions for his personal political survival. It is a move to institutionalize impunity. The motive is not justice for the victims of the post-elections violence. Until recently, Kenya had been relatively stable. Although the US, Israel and Sundan withdrawal from the ICC went without international diplomatic incident, Kenya’s withdrawal will most likely receive international condemnation. Kenya will probably experience significant diplomatic isolation

Kenya’s resolution suspends links, cooperation and assistance to the ICC effectively makes Kenya hostile to the ICC after the US has ended her hostility to the ICC. Apparently, Uhuru Kenyatta, his vice president and his government officials are set to snub their scheduled ICC trial. The most likely scenario is that arrest warrants will issue if the Kenyan politicians refuse to appear for their trial at the ICC. Arrest warrants for the president and vice president would certainly paralyze the entire government and State. In addition, international arrest warrants for the president and his vice president would cast Kenya into unfavorable diplomatic light.

The European Union and the US are Kenya’s biggest donors. The European Union is famous for supporting the ICC. It is unlikely that the European Union will continue funding Kenya after withdrawing from the ICC. The United States, under Obama administration, has thrown full weight behind the ICC.  It is improbable that the US will keep the tap on for Kenya after withdrawing from the ICC when the purpose of the withdrawal was, on its face, to   institutionalize impunity in Kenya.

President Uhuru Kenyatta and the proponents of Kenya’s withdrawal from the ICC Treaty might argue that Kenya is a sovereign and independent State with a right to frame its public policy independently. And, arguendo, Kenya’s budgetary foreign support need is negligible; around 7%.  First, the “sovereignty and independence” argument makes no sense for Kenya whose foreign debt stands at $ 1.4 trillion, one half of Kenya’s GDP.  Second, although statistics appear to suggest that external budget support for Kenya is around 7%, Kenya is excessively dependent on foreign loans, aid and grants. If donors turn off the tap in reaction to Kenya’s withdrawal from the ICC, Kenya’s economy could collapse the Greece way. The bulk of Kenya’s national budget goes towards recurrent expenditure which means the “7%” foreign direct budget support is but a fantasy because most of Kenya’s foreign aid, grants and government projects loans by-pass the budget.  If Kenya does not receive the “out-of-the budget” foreign aid, grants and government projects loans, Kenya would need over 50% foreign budget support.  Kenya is number one recipient of bilateral technical assistance in East Africa. Technical assistance flows to Kenya through military training and military hardware, free retroviral, health, agriculture and education among other public and private sectors.  If the international community’s reaction to Kenya’s withdrawal   from the ICC takes form of economic embargo, Kenya’s Tea and natural resources exploitation sectors might gust

 Conclusion

Kenya’s withdrawal from the ICC is a legal and political blunder for the President, his vice-president and other concerned Kenyan politicians.  The diplomatic and economic costs of the withdrawal might cause irreparable consequences to Kenyans. The motive for the withdrawal is sinister; the withdrawal is for the personal survival of the president not justice for the victims of the 2007/2008 post-election violence.  Kenya’s withdrawal from the ICC is a threat to Kenya’s young democracy, rule of law and good governance.  The decision is a manifestation of the Kenyan government’s readiness to institutionalize impunity.

 

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