After collapse of ICC cases, it’s time to debate domestic justice

The annual NGO roundtable with the International Criminal Court (ICC) will take place next week at The Hague and it is a good opportunity to revisit the question of Kenya’s relationship with the ICC and what the future holds. The roundtable has been going on for a number of years now and is an opportunity for different organs of the court to interact with civil society actors, who have played a role in the development of what became the Rome Statute, the treaty that established the ICC, and have thereafter also supported the processes of giving practical meaning to the idea of justice through the court.

In relation to Kenya, civil society has played many different roles in giving support to justice as a practical idea. Among other things, Kenyan civil society articulated the need for an international mediation of the political crisis in 2008, reinforced the actual mediation process with ideas, provided analyses of the Kenyan conflict which greatly informed interventions including the subsequent ICC analyses and investigations, provided advice and support in the cooperation between the court and Kenyan authorities, mobilised victims and linked them with organs of the court, offered or advised on witness protection, protected the court against political backlash, and advised on debates about domestic  justice alternatives and so on.

While the Kenyan cases were alive, Kenyan NGOs were dominant at all Rome-Statute events, whether the roundtable meetings or the annual Assembly of States Parties. At the time, those platforms provided opportunity for updates and strategy, important especially because of the mixed signals that the Kenyan state sent in relation to the cases from the country.

Not forthcoming

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After the collapse of the Kenyan cases in 2016 Kenyan civil society hoped for opportunities for a review of what had happened and what could be learnt from it. As such opportunities were not forthcoming from the court, Kenyan civil society actively sought to create the opportunities and in 2016, for example, a number of us attended that year’s roundtable at The Hague having made arrangements for audience with the different organs of the court.

In particular, the meeting with the presidency of the court was nothing short of a disaster. From the visuals, which emphasised a power distance that we did not know existed, to the tone taken by Judge Silvia Fernández de Gurmendi, the president of the court at the time, it was clear that the sense of grievance that Kenyan justice community had, and which we assumed was understood by the court, was not necessarily shared by the presidency. The message from the meeting with the presidency was that if anybody had failed the Kenyan cases, it was the office of the prosecutor. On their part, the judges were fine and were planning a retreat that summer during which they would reflect on their own lessons learnt. The question for all organs of the court has to be: to what extent have they tried to incorporate Kenyan voices in any internal reflections they have had regarding the way the Kenyan cases ended?

Of course, although the Kenyan cases were terminated without prejudice to the possibility of re-opening them in future, it is highly unlikely that this will happen. None of the organs of the court enjoyed their interaction with the cases and it is safe to say that none of them will be looking forward to a revival of the cases.

However, there is the small matter of the witness tampering cases that are still pending before the court. In this regard, there is an unenforced arrest warrant against journalist Walter Barasa. There is also the case against Paul Gicheru and Kipkoech Bett, both of whom are also wanted by the ICC by who now enjoy the protection of domestic courts that have issued orders preventing their extradition. It is in the interests of the Kenya government that the issues that regarded these three are resolved one way or the other. Kenyatta and Ruto will not be in power for ever and, while they have done well protecting themselves this far, it has come to a time when they need to think about what a future without them being in power would look like with these outstanding issues around them.

In the end, the Kenyan state defeated the ICC and the Kenyan human rights community that supported the court. In doing so, the Kenyan state also defeated justice and the victims. That defeat resulted from many things, among them the unpreparedness of the court and the unfounded assumptions, and hubris, of organs of the court including the prosecutor and the judges. Since the court has moved on, Kenya must also now move on, and, in doing so, should regard the experiences with the court as a source of valuable lessons. Kenya must now discuss the options for domestic justice that are based on a realisation that we were always on our own.

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- The writer is the Executive Director at KHRC. [email protected]

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