A decisive Kenya can stop ICC process

Godfrey Musila

Following the indictment of six Kenyans by the ICC prosecutor, a flurry of activity and commentary has ensued. I wish to comment on two related issues that have emerged in the debate.

First, is whether the ICC process is unstoppable. And Second, whether Kenya can withdraw from the Rome Statute.

Is the ICC process in respect of Kenya unstoppable? Legally, the answer is a clear no. The ICC process can be stopped, the question is to what ends. However, as I argue here, there is only one way of legally stopping the ICC process while remaining faithful to obligations under the Rome Statute: justice for victims.

The ICC is established as a court complementary to national courts, meaning that the ICC only investigates when national authorities are unable or unwilling to investigate or prosecute alleged ICC crimes, in the case of Kenya, crimes against humanity.

Retake control

In authorising Ocampo to open investigations, ICC judges had concluded that Kenya was unwilling to act against alleged key perpetrators. But a previously unwilling state can change.

Largely because action by an international tribunal undermines the idea of sovereignty, the state that is supposed to prosecute an ICC crime is granted opportunities until trial starts — in exceptional circumstances even after trial starts — to retake control of investigations or prosecution.

Retaking control is done through an admissibility challenge (art 19), either by the State or the accused person. Kenya and the suspects themselves have an opportunity to challenge ICC jurisdiction once judges have ruled issuing summons to appear.

One cardinal condition must be met though. During the admissibility challenge and beyond, Kenya must demonstrate to the judges that it is now willing to investigate and prosecute. Willingness is not demonstrated by repealing the International Crimes Act as some MPs are proposing.

If the idea is to replace the ICC fully, willingness will be demonstrated by the establishment of a credible, independent and well resourced local court(s), which can investigate and prosecute among others, those currently targeted by the ICC. If this is done, ICC judges will have no choice but cede jurisdiction to Kenya, with the possibility of retaking the matter should a cover up or sham trial ensue.

In short, the ICC process can be stopped, as described.

Can Kenya withdraw from the Rome Statute? Contrary to what some have suggested, the clear answer is yes.

As a treaty, the Statute provides for entry (ratification) and withdrawal (art 127). I Iistened to Parliamentary debate on Wednesday with some MPs (Mutula, Mungatana and Karua) suggesting that Kenya can only withdraw from the ICC after amending the Constitution (article 2 (5) and 2 (6) and that a Motion to request the Executive to start that process of withdrawal is ‘unconstitutional’.

This is a strange, and legally inaccurate argument.

The two articles above say customary international law and treaties ratified by Kenya form part of our law ‘under the Constitution’. Mutula suggests that this means that the Rome Statute, and other treaties ratified by Kenya form part of the Constitution.

In a previous comment on this provision, I noted that ‘under the constitution’ means ‘as provided by the Constitution’ or ‘in terms of the constitution’.

Ratified treaties — once domesticated by Parliament — form part of Kenyan law, but not part of the Constitution.

The legislative power of parliament includes the power to repeal any law it makes. This does not require an amendment of the constitution, which would be mutilated if the reasoning above is adopted. In any case, why would you need a referendum to amend or repeal a law merely because it domesticates a treaty?

The question is not whether Kenya can, but which arm of government can initiate withdrawal (de-ratification). In terms of the Constitution, negotiation, signing and withdrawal is the responsibility of the Executive.

Parliament’s power is limited to making laws or repealing laws, including those that domesticate international treaties like the Rome Statute.

However, Parliament can pass a motion asking the Executive to perform any of the functions relating to treaties: negotiation, ratification or withdrawal.

But what effect would withdrawal from the Rome Statute have?

Withdrawal from the Rome Statute does not stop or nullify the current ICC process. If this is what some MPs intended, then they will be badly disappointed.

Withdrawal does not affect ongoing investigations or any prosecutions that may ensue from those investigations. A notice of withdrawal to the UN Secretary General will take effect 12 months later. The ongoing process related to the suspects cannot be wished away, and cannot be extinguished by withdrawal from the ICC.

Massive overhaul

Therefore, if Kenya wants to take control of investigations linked to PEV, including of the named suspects, the only way is to establish a credible and independent local process.

I suggest that if changes have not been made to the ‘Imanyara Bill’ on the Special Tribunal that had been presented to parliament last time, it cannot pass muster.

It contains serious flaws that not only fail the Rome Statute test but also does not fulfill important constitutional requirements. A massive overhaul or a new Bill on the proposed special tribunal/court must be prepared.

Dr Musila is an international criminal lawyer. He has authored two books on the ICC. The opinions expressed here are not necessarily those of The Standard.

musila79@gmail.com