A stage has arrived in the history of Kenya where citizens must know in no uncertain terms whether the nation is for or against International Criminal Court.
Kenya ratified the Rome Statute, the founding treaty of the ICC, in 2005 and was among the first African nations to do so. Little did we know that this move would later cause a nationwide problem with the International Criminal Court. Ratification of the Statute allowed the court jurisdiction over war crimes, crimes against humanity, and genocide committed by Kenyan nationals after July 1, 2002.
This statute caused a furore in the country when the ICC prosecutor opened an investigation into crimes against humanity allegedly committed in Kenya following violence that followed Kenya's 2007 presidential election, which killed over 1,200 and displaced about 600,000 people. ICC's investigation into the 2007 violence was the fifth ever ICC investigation and first proprio motu investigation under Article 15 of the Rome Statute, which provides for an independently initiated investigation without prior referral from a member state or the United Nations Security Council.
Proprio muto under Article 15 elicited significant opposition during the drafting of the Rome Statute and continues to be regarded as a controversial power of the court, which controversy dribbled into Kenya in the name of one Luis Moreno Ocampo. Only President Uhuru Kenyatta, his deputy William Ruto and broadcaster Joshua Arap Sang, were put to trial in 2013. ICC has often come sniffing in our backyard as the suspects and supporters alike drummed up massive campaigns to withdraw or not to withdraw from the Rome Statute.
On September 5, 2013, shortly before the trial of Mr Ruto commenced, the Kenya National Assembly passed a Motion for withdrawal from the ICC by tabling a law that would repeal the country's International Crimes Act 2008, which domesticated the Rome Statute In 2009. The Senate passed an expanded version of the Motion on September 10, much to the chagrin of the Opposition.
The main reason for withdrawal was that the ICC trials were impeding effective governance of Kenya, which demanded to be allowed to deal with its own affairs. National Assembly majority leader Adan Duale emphasised the need to protect the sovereignty of Kenya against attempts at politically motivated interference. In the Senate, majority members characterised the ICC's involvement in Kenya as "an attempt to recolonise Africa" and portrayed the Prosecutor as a rogue actor who can destroy individuals' reputations and lives at will.
Procedurally, Article 127 (1) of the Rome Statute requires that a State Party that wishes to withdraw may do so by notifying the UN Secretary-General, who is the depository of treaties. The Kenyan government made such notification after Parliament and Senate's approval, which would take effect after a laid-down period of one year. Conversely, any investigation opened prior to the withdrawal process does not seize and Kenya will still be obligated to cooperate with the ICC till finality. The United Nations has been precariously silent on the withdrawal matter to date.
Attorney General Githu Muigai wrote on an April 8, 2013 that: "The Kenyan Government is keenly aware of the importance of State Parties providing the necessary cooperation and assistance to the Court in line with the obligations of Part IX of the Rome Statute. It is in this spirit that the Kenyan Government refused to withdraw from the Statute following the overwhelming vote in the 10th Parliament of the Republic of Kenya's requesting the Government to take such action."
Was this perhaps the learned AG's way of withdrawing with a diplomatic twist as well as keeping in tandem with the Procedure of the withdrawal process? The President and his Deputy have often pledged cooperation and even hosted former ICC prosecutor Moreno Ocampo. All very contradictory! Whatever the learned AG's thinking, what is clear is that Kenya is on the path to withdrawing from the Rome Statute, along with other members of the African Union who are of the view that the ICC has been a court on a political hunt, or otherwise for Africans. Indeed, all the 18 cases the ICC has investigated thus far are against African leaders, causing a general displeasure for the Court across the continent.
The African Union supports Kenya's decision to withdraw from the Rome Statute and discussions of mass departure of African nations from the Rome Statute are being held. The history and Kenya's tumultuous relationship with ICC is unflattering at best. In national interest and for the future of our nation, the question of whether or not to withdraw from the ICC must receive national attention- even a referendum, but sitting on the fence does not auger well.
The long-term and opposite and confrontational views of the victims of crime and IDPs on one side and highly placed politicians on the other, need to be balanced when thinking of exiting from ICC.