Why Ruto's African court stamp is raising heat among rights groups

Then-Deputy President William Ruto at the ICC over charges relating to the 2007/08 post-election violence in 2016. [File, Standard]

Fears have been raised by Azimio leader Raila Odinga and human rights activists over President William Ruto’s alleged signing of the Malabo Protocol last month.

Top government officials, pro-system activists and allied politicians however deny that Kenya signed the protocol ratifying the creation of the African Court of Justice and Human Rights (ACJHR).

Despite the denial, human rights campaign groups led by the Kenya Human Rights Commission (KHRC) have raised the red flag arguing that Kenya is in a hurry to ratify the treaty before the set October deadline this year. Last month, KHRC tweeted that on July 24, President Ruto signed the Protocol of the Constitutive Act of the African Union (AU), paving way for granting himself immunity against potential international crimes he may commit while serving as the head of state.

The joint statement by KHRC and Muslims for Human Rights (MUHURI) expressed concern over Ruto’s action arguing it would likely have great ramifications for the quest for justice on behalf of victims and survivors of international crimes within Kenya.”

“Ruto’s signing is a continuation of Kenya’s campaign to defeat international justice mechanisms, specifically, the ICC,” said the joints statement signed by both organisations.

But in a rejoinder Foreign Affairs Principal Secretary Korir Sing’oei dismissed the claims as false, explaining that what Kenya signed on July 16, 2023 was the Protocol to the Constitutive Act of the African Union which establishes the Pan-African Parliament.

In July, President Ruto hosted leaders from AU, among them the president of the African Human Rights and Peoples Court which will be wound up and absorbed by the ACJHR if it is ratified. 

“The AU is consolidating and strengthening its institutions so that it can serve the continent better. Kenya will play its role in strengthening AU institutions including regional economic communities, the African Court on Human and Peoples Rights and the Pan African Parliament,” tweeted Ruto. 

Despite the government emphasising that Kenya had not signed the Protocol to the ACJHR as alleged, KHRC through Programme Officer Annet Nerima has demanded for more transparency and public participation before enactment of an amended version of the protocol

Speaking on Tuesday, Nerima said they are concerned about African leaders signing a law that provides them with immunity from prosecution over international crimes.

“Persisting in disseminating false information on this matter is irresponsible particularly from an organization such as KHRC. Kenya government has not signed the Protocol to the AU Court of Justice extending the Court’s jurisdiction to international crimes.,” Sing’oei responded again.

Note that Sing’oei’s involvement with ratification of the Malabo protocol ratification process dates way back to 2015 after Kenya earlier failed to convince the United Nations Assembly of State Parties in New York to amend the Rome Statute in December 2014. 

He emerged as a key player in fighting for Ruto’s release after the ICC dropped charges of crimes against humanity on President Kenyatta also in December 2014. 

After lobbying hard at the AU Heads of States Summit in February 2015, most presidents agreed with Kenya on the need of having the court set up because the ICC was allegedly targeting African leaders.

President Kenyatta was at the time making every effort to also get his deputy out of the ICC and appease Ruto’s supporters who were becoming increasingly uncomfortable with his continued appearance at the court.

At the 2015 AU meeting MPs from Ruto’s United Republican Party (URP) Kipchumba Murkomen (Senator Elgeyo Marakwet) and Samuel Chepkonga(MP Ainabkoi) both lawyers, accompanied by Sing’oei as part of the team sent to lobby in Addis Ababa.

Murkomen and Chepkonga were said to have raised concerns that the diplomatic efforts were not robust enough as they put pressure on then Foreign Affairs Cabinet Secretary Amina Mohammed and her team to do more in raising signatures for ratification of the protocol. 

Some lobbysts who attended the meeting told The Standard later that afternoon in the Ethiopian capital that Sing’oei, who was the legal advisor in the deputy president’s office played a big role in calming the situation.

Despite failing to raise the 15 signatures required to ratify the treaty, Amina downplayed the embarrassment saying 11 countries, four less than those required to sign the document, had agreed to support Kenya.

The ongoing counter claims have emerged after the opposition led by Raila claimed it was collecting evidence to be filed at the ICC against the government and police officers for indiscriminate shooting and killing of protesters in the recent demonstrations.

Inspector General of Police Japheth Koome has alleged that opposition leaders allegedly hired bodies from hospitals which they claimed were those of over 50 people killed by police in the protests.

Speaking in Vihiga, last week, Raila claimed that President Ruto signed the protocol in attempts to stop ICC from prosecuting top government officials for the human rights violations

Raila’s ODM party tweeted: “Hon. @RailaOdinga has told @WilliamsRuto to stop committing atrocities and then hiding behind protocols to prevent, escape facing the law,” Speaking in Vihiga.

Opposition leaders have also told government officials that signing the law will not stop ICC charges because powerful people like President Vladimir Putin whose country is not a signatory to the Rome Statute are on the wanted list. African governments have in the past mostly given lip service to the creation of a functional ACJHR instead of robustly mobilizing funds and other resources to make it operational. In 2015 when the push gained momentum because the Permanent Representatives Committee (PRC) of all the African plenipotentiaries accredited to the AU was working out modalities for mobilising funds for the new court. 

President Kenyatta however appeared to have been in a hurry with a pledge of Sh91 million, which appeared to take many of the delegates in Addis Ababa by surprise.

Some civil society critics linked the pledge to the government’s desperation as it made every effort to calm Ruto’s supporters and to demonstrate that it was applying diplomatic pressure over his ICC case.

The Kenya Human Rights Commission now says President Ruto’s signature in July was appended so that Kenya can beat the October 23, 2023 deadline when all countries are expected to have ratified.

The Rights’ group argues that the next step that is awaiting the protocol now is the law coming into force and after October, Kenya will be listed as one of those countries that have ratified. 

“What is the intention once you do the signing? Is it for our leadership to join other heads of state to ensure that they provide immunity to themselves?” asks Nerima.

She urged Kenyans to be on the lookout because the president has already taken a step by appending a signature whose intention is not very clear.

Speaking at the same interview Dr Evelyne Asaala from the University of Nairobi Law School raised concern that what is coming out is clandestine in nature.

“I find that very interesting because the ratification process should be done through Kenya’s governing law and so ratifying requires public participation,” she said.

That is lacking in the current process which appears to be geared towards getting the signatures, ratification and submission of the instruments to the AU without public participation.

So under Kenya law the ratification process first requires approval by Cabinet, then Cabinet Secretary for Foreign Affairs moves the Bill to the National Assembly to be processed by the respective parliamentary committee. The committee is then expected to engage the public to get their views so that by the time the National Assembly sits as a committee of the whole House, the treaty will either be approved or rejected based on reference to the people’s participation.

“It should not be a clandestine process to the extent that we really appear not to be aware of what is happening. This process is happening under wraps and it is difficult to know what is going on,” she added.

Dr Asaala argues that the protocol from the Pan African Parliament is very clear. It states the number of countries required to sign on and all set timelines.

The KHRC also urged parliament to intervene and show that it is working for interest of all Kenyans by ensuring that only treaties that protect human rights and other democratic principles are ratified.