Kenya’s Withdrawal from the ICC – An Act in Vain?

(Photo: Reuters)

(Photo: Reuters)

Yesterday, Kenya’s Parliament voted in favour of a motion to withdraw from the International Criminal Court (ICC). In the wake of the vote, there has been some alarmist rhetoric about what Kenya’s move to withdraw from the Court means for the ICC. In yesterday’s post, I tried to dispel some of the concerns that the vote to withdraw would affect the ICC cases against Kenyan President Uhuru Kenyatta and William Ruto or that a Kenyan withdrawal would lead African states to leave the Court en masse.

But what does a potential withdrawal really mean for Kenya? Perhaps not as much as has generally been assumed. For starters, the motion does not mean that Kenya has already withdrawn from the ICC. Another bill to that effect will have to be introduced in Kenyan Parliament within the next 30 days. It will require a two-thirds majority to pass, a tall order for the Jubilee Alliance. It is far from guaranteed that such a bill will pass.

Furthermore, in a brilliant comment on the blog yesterday, Thomas Obel Hansen, an Assistant professor of international law at the United States International University in Nairobi, argued that “Parliament’s move raises more questions than it provides answers” and that it is far from guaranteed that Kenya will fully withdraw from the ICC. Obel Hansen’s comments are worth quoting in full:

First of all, it is important to point out that the motion passed was not the original one tabled in Parliament which you cite here, but an amended version, in which the sentence “further aware of a resolution of the National Assembly in the Tenth Parliament to repeal the International Crimes Act and to suspend any links, cooperation and assistance to the International Criminal Court” was deleted. This amendment, it was said during the debate, was adopted in order for Kenya not to defy its obligations towards the Court. So, on the one hand, many of the parliamentarians who took the floor yesterday said that their intention with the motion is to avoid that Kenyatta and Ruto stand trial in The Hague, but on the other hand, if this was really the intent it is surely curious that this amendment was included without much controversy (an a session that otherwise didn’t lack any drama).

(Photo: Reuters)

(Photo: Reuters)

Further, whereas the motion states that a bill will be introduced which will compel the Kenyan Government to withdraw from the Rome Statute, it is not clear that Parliament actually has the powers to do so. Kenya’s Treaty Making and Ratification Act 2012 makes it clear that it is the prerogative of the executive branch of government to initiate ratification as well as denunciation of international instruments, though Parliament must be consulted and can under certain circumstances block such decisions. So, if Parliament may only encourage the executive to initiate a withdrawal but cannot itself do so, there wouldn’t really be a need to repeat that message in an Act of Parliament to be adopted at a later stage. The motion would clearly suffice.

In contrast, if Parliament wanted to repeal the International Crimes Act (ICA), it could simply have done so by passing a bill, rather than passing a motion saying that it intends to do so within the next 30 days. Whether the ICA will be repealed will obviously depend on the outcome of the vote on such a bill, not the passing of yesterday’s motion.

And what purposes would repealing the ICA serve? Leaving aside that, from an international law perspective, it is clear that neither withdrawing from the Statute nor repealing the ICA would have any impact on the obligation to cooperate with the Court with respect to the ongoing cases. Should Parliament repeal the ICA it is interesting to note that this wouldn’t change a thing in terms of the obligation to cooperate with the Court on the ongoing cases from a national law perspective. The various obligations that follow from the ICA would continue to form part of Kenyan law for at least a year already because Article 2(6) of the Kenya Constitution makes it clear that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”. In other words, since the Rome Statute will in all circumstances continue to form part of Kenyan law for at least a year, the possible passing of a bill to repeal the ICA would not be helpful if the purpose is to create a foundation in national law for not cooperating with the ICC since such obligations already follow from the Rome Statute, and thus an instrument that forms part of Kenyan law.

If Parliament intended to create a basis for non-cooperation, it thus seems to have acted in vain. Of course, it might be that the motion was primarily a symbolic act aimed at showing support for Kenyatta and Ruto, in a sense, repeating Parliament’s vote in December 2010. If so, it wasn’t necessarily well-thought through either.

Of course, many have already argued that Kenya’s move was little more than a political ploy and show of support for Kenyatta and Ruto ahead of their trials. If it had been about justice, Kenya’s Parliament might have discussed what the country could do to bring perpetrators of the 2007/08 post-election violence to account. They didn’t.

Obel Hansen’s remarks suggest that there may be less to this vote than meets the eye. It is far from certain that Kenya will actually withdraw from the ICC.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), International Law, Justice, Kenya, Kenya and the ICC and tagged , , . Bookmark the permalink.

10 Responses to Kenya’s Withdrawal from the ICC – An Act in Vain?

  1. Pingback: The ICC and Kenya Parting Ways? What it Means and What it Doesn’t. | Justice in Conflict

  2. Obie says:

    Well written however that may be the smaller and short term picture rather than the bigger long term picture. The smaller picture being that what is currently before the court today and the larger picture being that not again after the one year period, shall a Kenyan citizen ever be tried before the ICC (unless of course by referral by the UNSC).

    Do two standards of analysis exist when the United States can shun and inform the court that it will not co-operate with it ( and when Kenya intends to withdraw but maintain cooperation, that Kenya’s intentions are the larger and not ‘well thought out’ evil? Was the US rejection of the court not well thought out as well? Does this type of critique dwell on the misconception that Africans are incapable of thinking for themselves and can only get things done right with a western rubber stamp of approval?

    The National Assembly like the US Congress are the elected representatives of the people of Kenya, at a 39% ICC approval rating by the public, why would that be a tall order to pass soon after the recently held elections? Just as the western media are not experts in the dynamics of Kenyan affairs as was evident in this year’s elections, they stand to be proven wrong yet again on what this really means. The possible mass withdrawal from the ICC and the effective end of the ICC as an alternate court of jurisdiction for African countries has the true and very real potential of kicking off. The naysayers may say or think otherwise, but actions do speak louder than words and the Kenyan parliament has set the ball rolling and the clock ticking. When the ICC scheduled to have the President and Deputy President simultaneously for a month at the Hague, a foreign jurisdiction, leaving the country leaderless for 4 weeks, it brought a new dimension whose repercussions will be seen in the coming years and months. If Obama and Biden were required to be at the Hague for the sake of argument for 4 weeks simultaneously with no room for compromise on scheduling, regardless of guilt or innocence, would that be acceptable to the American people in the name of Justice, political leanings set aside?

    • John Dibbley says:

      “Never … unless of course”. Kenyan logic?

      This has nothing to do with the US. Obama and Biden were not responsible for the murder of thousands, rape and injuries to tens of thousands, and displacement of over half a million.

      The complaint about ICC leaving the country leaderless is also misplaced. When running, the two knew they had cases coming up. During their campaign they were specifically asked how they could run the country from the Hague. They had their smart answers. But now everyone wants to weep over their absence?

      “Does this type of critique dwell on the misconception that Africans are incapable of thinking for themselves …?”

      Making it an emotional issue does not help. But if you want to answer you own question, you can do so by looking at the mess that is Africa. In the DRC, it is now over 6 million dead; elsewhere you can find out for yourself.

      This trick of trying to make it an issue about colonialism and the West does not help anybody, Africans included. Africa has too many leaders and so on that should be dealt with. The ICC is now doing its part.

      Possible mass withdrawal is nonsense in reality. How many time did Jean Ping, as head of AU promise that over the Kenyan cases? How many times over the Sudan cases?

      The trials start on 10 Sep.

      • Obie says:

        Using the term “Kenyan logic” betrays your misplaced superiority complex and entitlement to it. Was the post undersigned “All Kenyans”. What does nationality or origin have to do with logic?

        Indeed “unless of course”, do you really expect the US, UK, Israel or any of the powers that be, to be referred to the ICC via the security council if a resolution for any one of them was tabled? Indeed one can see the unequal standards of international justice at play every day by the very powers who dictate to the rest of the world about morality and justice.

        Have you ever heard of the words, scenario and analogy? Did you understand what the post was explaining or did you simply respond in a hysterical, emotional and knee jerk manner. We could talk about drone strikes on innocent Pakistanis and American citizens all day. I presume those are not crimes against humanity when the perpetrator is different. Perhaps using drones makes it legal to regularly kill scores of innocent humans of the premise that Tom, Dick or Sally might be among them.

        There is no trick about colonialism. Kenya is an independent country, it can make its own independent choices. The West using your arguments should mind its own business than attempt to attempt to patronize others. The West can work with other nations in a arena of mutual respect and friendly relations, that is acceptable, anything less is not. Do foreigners tell the US how it should run its affairs or whom to associate with? Is it a sovereign right for the US to leave and join treaties on its own volition?

        2000 people died in Egypt in a single day over a coup detat endorsed by the western powers that be, less than that in the Kenyan post-election violence. Yet when the police in Kenya acted with deadly force to safeguard property and human life, it was a rush to the ICC, notably that ended in the acquittal of the police commission. Any rational thinking person can see the silly game of smoke and mirrors that western nations play, having one standard for themselves where they can kill with impunity and another set where Kenya is not the DRC, Africa is not a country! If you are going to talk about Kenya then talk about Kenya, don’t digress so as to clutch at imaginary straws in the air.

        Indeed the only reason the minnows in DRC are facing charges instead of the real perpetrators is once again western self interests. Since you digressed, perhaps the CIA, Mobutu Sese Seko, the Belgians and the assassination of Patrice Lumumba might ring as bell as to the original roots of the conflict in the DRC. There will not be peace in the DRC for as long as there is strife in that nation, western powers and enterprises will be the beneficiaries of the conflict through the massive wholesale fleecing of the DRC economy of its minerals. Do you need to be reminded of the acquittal by the ICC of Mathieu Ngudjolo Chui in what like the Kenyan cases, witness coaching and manipulation by the OTP was evident?

        In the dispensation of Justice, a court that depends on its member states must be cognizant of realities. In the United States and courts all over the world, continuances are granted on a reasonable basis on the presentation of circumstances that would allow for it. The ICC has refused to reach any level of compromise but demands co-operation from its members. The ICC rejected sitting the of part of the cases in Arusha – Tanzania (site of the Rwanda tribunal) or Kenya, the ICC rejected varying the schedule of some of the hearings with 2 weeks intervals in between, the ICC rejected the use of attendance of video link for portions of the trial. Obviously an uncompromising court that doesn’t work for reasonable requests, not to be confused with special treatment, is a court that feeds the sovereign decision to withdraw from the court.

        In your apparently hysterical response, you totally missed the core thrust of the message. That the stage was being set for a possible massive withdrawal from the ICC. South Africa has already chimed in shortly after the vote expect others to follow. Did you expect withdrawals to happen overnight with a stroke of a pen or through democratic processes? How long is it taking the US congress to approve unilateral action against Syria?

        If you’re not happy about Kenya as a country having taken the time to present its case to the ICC, the UN(S) Security Council prior to the decision being made by the elected national assembly representatives of over 40 million Kenyans, then you must hold your peace, or simply change your country of citizenship and run for elective office one day in Kenya. Presumably you also understand basic civics about the different arms of government, the executive, the legislative and the judiciary. The legislative made a decision unless you are a member of that assembly you lack standing to change that decision. The legislative arm is not the executive I am sure you understand that well and neither is the legislative arm a charged party in the ICC cases.

        Whether you like that fact or not is immaterial, it is just what it is, raving and ranting from a foreign land is not going to change what is a sovereign decision to withdraw from a treaty. Who said the trials were stopping or not going to go on, did you mistakenly think that fact was lost when the national assembly voted or that the decision would not affect the ongoing cases ? How so when over 100 NA members over the next month will be going to the Hague to attend the proceedings? The OTP must present its case for all to see and when its shown to be a sham as is evident from the endless sworn statements of former prosecution witnesses citing OTP coercion and witness coaching, acquittal must follow. The Ocampo 6, are now the Bensouda 3, indeed if it was solid case, it would have all 6 before the court today. Besides one could start looking into other legal hurdles, such as whether the Rome statute supports the theory of indirect co-perpetration. That however is neither here nor there. The bottom line is the national assembly made a decision, so live with it.The charged parties are still cooperating with the court, are attending their trials and if you want to start a discussion about Africa, then realize there are 53 countries in Africa, Africa is not a state but a continent. Once again “not well thought out” is an insult to what was a democratic process subjected to public discourse and debate for and against it.

  3. John Dibbley says:

    Those who wish to believe that the noises from the AU and elsewhere make it an issue of the ICC vs. Africa should consider the following.

    All those who support that view (especially the AU) have made a lot of noise in the Bashir case. They have made a lot of noise in the case of Uhuru and Ruto. Have you ever heard anything about the other people with cases at the ICC, or is it that Western imperialism is limited to just these three people?

    The matter here is the clear one of African leaders doing the things they shouldn’t be doing, getting caught, and they trying to use their power and influence to escape what they properly deserve? This last minute desperate move by Uhuru & Ruto’s party (it is NOT the Kenyan parliament) must be seen for what it is.

    • Obie says:

      You can tell that again to the Kenyan people. It is apparent you don’t understand how democracies work, either that or you are a sore supporter of the looser in the last election who has made it a habit to reject every election that does not go his way.

      Government by the people for the people, individuals elected directly at the ballot box by millions of Kenyans. Got caught? Really? Why hasn’t the conviction taken place already? Why bother with a trial? They are just what they are, allegations by the OTP? Allegations that keep crumbling day by day, when Witness 4 stated he had withdrawn his testimony Francis Muthaura, co-charged with Uhuru on the same set of charges was acquitted, in an unprecedented move, the OTP pressed on. The OTPs circus continues. A leader caught in office, think again, Uhuru was not a contestant in the 2007 election, neither was Ruto. Everyone remembers the chant “No Raila, No Peace”, chanted by armed so called protestors responding to Raila Odinga’s call for mass action, a coded way of inciting violence.

      • John Dibbley says:

        They have indeed been caught. If you have any doubts, tune in to the Hague channel tomorrow. There, you will see the first of the couple in the dock.

        What you need to understand is that this is not about democracy or anything of the sort. This is a criminal trial, and it cannot be decided on how many votes a person got when they ran for the office of village elder or any other office. Here is how it works: evidence will be presented against them; in turn, they can counter that in various ways, including offering evidence of their own. Then the judges decide. Nothing else matters.

        By the way, I AM one of those Kenyan people, I thank the ICC for stepping when the government of Kenya has failed totally to do absolutely anything. Africa’s so-called leaders need to understand that human rights is not limited to those outside Africa. They are rights for ALL HUMANS.

  4. Alexander says:

    Mister Kenyatta is an accused and nothing else. He has the same rights as any other accused, and that includes the right to ask the judges for a postponement or adjournment of specific and individual dates, for good cause only. Whether Steven Kay has made a suitable follow-up application in the status conference of 6th September, or rather has made a fool out of himself (as a present Kenyan newspaper report suggests), remains to be judged after we see the entire transcript.

    Kenyatta’s bad idea of vying for a high office while knowing perfectly well that he would not and could not be available to fulfill the duties of this office, is NOT such a good cause, however. This is his problem alone, not that of the ICC. Anyhow, he can always resign from the office and thus resolve the predicament in a correct and dignified way.

  5. alatusilae says:

    the good thing is that, no matter how people cry, the ICC will still have power over them. the only relief they are seeking for is “not to cooperate with them” in the future, but still they can be prosecuted besides not being member of icc

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