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 For starters, the motion does not mean that Kenya has already withdrawn from the ICC.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).
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.