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There is need to look at other actors in ICC cases

By Charles Kanjama | September 15th 2013

By Charles Kanjama

Anyone who works in the legal justice system gets to learn, sooner or later, that even the best judge is unable to attain a high standard of justice unless the other actors in the system have integrity, competence and efficiency.

This is the case in Kenya and elsewhere, today like in the past. This is also the case with the International Criminal Court (ICC). To probe whether the ICC will ensure international justice requires us to look at all the other actors of the ICC system, not just at the judges.

Taking the Kenyan case as an example, the other actors include the ICC Prosecutor, who has played an outsized role in the process, Kenyan governance, NGOs, which are the architects of the Hague option, and the UN Security Council, which is given a political monitoring role by the Rome Statute.

Other actors include local and international media, the Victims and Witnesses Unit, the European and other Western nations invested in the ‘success’ of the ICC, the suspects and their advocates, the victims of post-election violence, and other Kenyan citizens.

Finally, you have the critical actors who started the whole process of accountability, and who the Deputy President’s lawyer accused of generating an infected stream that was latched onto by the ICC Prosecutor.

Their key outputs include the Waki Report, and the related KNCHR Report issued a few months prior. To gauge the ICC, in addition to the actors involved, one must also do a general qualitative assessment of its institutions, the laws it has interpreted and applied, and the philosophy governing the institution.

This analysis, and the related political debate, constitutes the other trial, taking place concurrently with the Hague trial. ICC may not say it, but they are keenly interested in the outcome of this other trial, because it is of existential importance to ICC’s continuity as an instrument for international justice.

This other trial is important for a simple reason. ICC is a judicial system of governance, which applies to us due to our consent, under the principle pacta sunt servanda (Latin for, ‘agreements must be kept’). Under this principle, both the nation states that consent to a treaty as well as any international institutions created therein must comply with their treaty commitments.

This principle has two major exceptions. The first is the principle of jus cogens (Latin for, ‘compelling law’), which refers to fundamental principles of international law that apply to all states, and for which no derogation is permitted. Fundamental principles of international criminal law will continue to apply to Kenya even if we withdraw from the Rome Statute.

But specific treaty obligations, that don’t apply to USA, China, Russia, India, Egypt, Ethiopia... and over half of the world’s population, will no longer apply to us.

The second exception is the maxim rebus sic stantibus (Latin for, ‘things thus standing’), which is a legal doctrine that allows treaties to become inapplicable due to a fundamental change of circumstances. This principle is stated in the 1969 Vienna Convention on the Law of Treaties (art 62).

These three principles manifest a basic premise of democratic governance, neatly expressed in the 1776 US Declaration of Independence thus, “We hold these truths as self-evident; that all men are created equal, that they are endowed by their Creator with certain inalienable rights... That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter and abolish it...”

Kenya thus has a legal and moral right to pull out of Rome Statute, obligations that go beyond customary international law. Article 127 of the Rome Statute permits withdrawal by any state party, after a one-year notice to the UN Secretary General. Under Article 94(1) of Kenya’s Constitution, Parliament can also revoke the International Crimes Act, 2008, which domesticated the Rome Statute.

Critics of Kenya’s impending withdrawal from the ICC are thus left with two claims. First is the ‘deficient African’ argument, which demonstrates a tragic neo-colonial mindset. Second is that ICC promotes international justice. Next week, we’ll tackle this second claim and give our verdict to ‘the other trial’.




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