Kenyatta’s Next Move: What Kenya Wants from the ICC

(Photo: Getty Images)

(Photo: Getty Images)

Kenya’s dreams of getting the UN Security Council to defer the cases against President Uhuru Kenyatta and Vice President William Ruto have collapsed, at least for the time being. Key members of the Security Council aren’t willing to go for it; at least one of the P3 – France, the UK or the US – has made it clear that they would veto any attempt to invoke of Article 16 and defer the Kenya cases for at least one year.

Of course, that doesn’t mean that Kenya’s battle against the ICC is over. They may have lost the battle but they’re in it for the war. The country’s attention has now turned to the upcoming Assembly of States Parties (ASP) conference in The Hague (November 20 – 28). And, thanks to an online leak, we now know exactly what Kenya wants to see happen at the ASP.

Kenya will put on a full-court press in an attempt to amend the Rome Statute. Their attitude seems to be that if they can’t circumvent the Court, they might as well try to change it.

What Kenya Wants

1. An amendment to Article 63 pertaining to the presence of an accused at trial. Whether or not Kenyatta (and Ruto) have to be continuously present at their trials in The Hague has been an issue of much contention. Many believed (and some hoped) that allowing Kenyatta and Ruto to be absent from parts of their trial would constitute a middle ground and, consequently, lessen tensions between the Court and Kenya. However, it was recently ruled that Ruto had to be present throughout his trial and it now appears that a similar decision will be made in the Appeal’s chamber with regards to Kenyatta. Some, like Kevin Jon Heller, believe this is a recipe for disaster, putting the ICC and Kenya on a collision course.

Kenya wants to make it easier for individuals such as Kenyatta and Ruto to avoid being present at trial throughout the duration of proceedings. Specifically, it wants the Rome Statute to be amended to read:

“…an accused may be excused from continuous presence in the Court after the Chamber satisfies itself that exceptional circumstances exists, alternative measures have been put in place and considered, including but not limited to changes to the trial schedule or temporary adjournment.”

Walter Barasa (Photo: Fred Mutune / Xinhua Photo)

Walter Barasa (Photo: Fred Mutune / Xinhua Photo)

2. Kenya wants to amend provisions within the Rome Statute that ensure the Court treats “all persons without any distinction based on official capacity.” According to Kenyan officials, this “goes against the basic tenets of international law pertaining to privileges and immunities of government officials.” Kenya would like to see that government officials who are cooperating with proceedings (like Kenyatta and Ruto) should be excused from these provisions. Moreover (and predictably), Kenya wants to see Article 27 amended with the words: “… serving Heads of State may be exempt from prosecution during their current term of office. Such an exemtion [sic] may be renewed by the Court under the same conditions”. In other words, if you’re elected, you shouldn’t have to go to the ICC until your time in power is up. You have to wonder what kind of incentive that gives to gaining and maintaining power at all costs. 

3. Kenya has taken offence with Article 70 which pertains to influencing and intimidating witnesses. This has been an ever-present and controversial issue with regards to the Kenya cases. The Prosecution has regularly maintained that its witnesses have been intimidated and went so far as to have a warrant of arrest issued for Walter Barasa who, they claim, attempting to influence three prosecution witnesses. Kenya believes that it has been wrongly accused and argues that Article 70 is biased towards the prosecution. They claim that “it’s clear that either party to the proceedings can approach the Court when such offences are committed” and want Article 70 to be amended to include the following: “The Court shall have jurisdiction over the following sentences against its administration of justice when committed by any person” (emphasis added).

4. Kenya believes that there is a “conflict of powers” between the Independent Oversight Mechanisms (IOM) at the ICC and the Office of the Prosecutor. They want to see the Rome Statute amended to make clear that the IOM is “empowered to carry out inspection, evaluation and investigations of all of the organs of the Court.” (emphasis added).

Hague-November2009-017full5. Lastly, Kenya is seeking an amendment to the preamble of the Rome Statute with regards to its description of complementarity. Specifically, Kenya believes that the the preamble should be changed from stating that the ICC “shall be complementary to national criminal prosecutions” to the ICC “shall be complementary to national and regional criminal prosecutions.” (emphasis added). This is in line, they argue, with the African Union’s work to create a regional criminal court to prosecute alleged crimes committed on the continent.

Too Much or Not Enough?

So what are we to make of these suggestions? Some are clearly self-serving but others, like the amendment to the preamble, seem sensible enough. The bigger question is whether the ASP will be willing to reopen the Rome Statute. Doing so could open pandora’s box; once it’s open, there could easily be a wave of demands and amendments proposed.

More importantly, even if all of these amendments were passed, they would not take effect immediately. Which means that Kenyatta is still expected in Court when his trial resumes in early February. If Kenya wants to avoid having their president sit trial in The Hague, they’ll have to cook up a different scheme.


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 Deferral, International Criminal Court (ICC), Kenya, Kenya and the ICC and tagged , . Bookmark the permalink.

10 Responses to Kenyatta’s Next Move: What Kenya Wants from the ICC

  1. Obie says:

    A supposed leak with a handwritten annotation “Kenyan suggestion”, unsigned and undated, doesn’t show with pinpoint accuracy its actual source or authenticity. It could just as easily have come from a Western or African party.

    What national interests of the P3 are worthy of a veto in a matter which if defeated touches on risks to their own national security? The UK Parliament was concerned enough on the prospect of a fallout with Kenya that it has held two sessions thus far discussing the same President Hollande indicated they were willing to work with African Nations to address procedural matters at the ICC: @45:25 The only silent party on the same is the United States but its recent actions in Somalia speak of its concerns regarding the very subject cited in the UNSC resolution. A negative outcome will have far reaching diplomatic, economic and anti-terrorism consequences for any member seeking to veto just as much as it will for Kenya and the ICC and have diplomatic repercussions in various forms across Africa.

    The cynical games of Western actors at play are rather evident. When it was rumoured that African states would withdraw from the ICC, it was condemned. When the African Union Summit took place to discuss the ICC in a free and democratic manner enshrined in sovereign freedom, that too was attacked. When the African Union States sought to engage the United Nation Security Council diplomatically, that too has been attacked, continues to be attacked and undermined with zero compromise or counter position.

    What escapes notice is that the African Union has for months engaged in dialogue with the ICC and for a period of time the UN Security Council.

    The ICC wrote to the African Union asking that African States use the AU Summit to collate their concerns and concrete proposals for the Assembly of State Parties. Now that that has been done, an initiative to undermine the proposals is already under way lead by Western proxies such as Amnesty International and groups whose composition is anything but African or at best has token representation of Africans.

    While in Addis Ababa, the Security Council delegation held a joint meeting with the Peace and Security Council of the African Union. They exchanged views on the situations in the Great Lakes Region of Africa, in Sudan and South Sudan, in Somalia, in the Central African Republic and in the Sahel region. They also exchanged views on the enhancement of the partnership between the African Union Peace and Security Council and the United Nations Security Council. They adopted a joint communiqué.

    The Assembly session provides an important opportunity to have a political discussion of issues concerning the Rome Status and it is also a place where decisions within the mandate of the Assembly, including the legal framework, are taken. I hope that any meetings of the African Union or African States Parties prior to 20 November would focus on consolidating suggestions to be presented to all States Parties, bringing forward ideas and concrete proposals for action to the Assembly.

    Click to access 2013-09-20-PASP-Letter-AU-AUC-ENG.PDF

    Excellencies, communication between the ICC and the AU has been ongoing. Since the May Summit, we send two letters co-signed by the Chairpersons of the AU and the AU Commission to the ICC, an AU delegation led by the Chairperson of the Executive Council met the President and Prosecutor of the Court in The Hague and the Chairperson of the Commission met the ICC Prosecutor earlier this week.

    Click to access WelcomeExtOrdAsembly12Oct2013%20(FINAL).pdf

    Will one later attack African nations for withdrawing from the ICC treaty or limiting cooperation with the ICC when all reasonable attempts to reach a consensus on procedural issues have been exhausted with futility both legally (at the court) and diplomatically? Of course, they predictably will.

  2. Medlir says:

    Opening up the Statute just so that Kenya’s demands are met would be a disaster. Which is why we still feel that an Article 16 referral is the best way forward:

    Click to access 2013-09%20MM_MH_pdf.pdf

  3. Alexander says:

    The article 16 deferral is deader than a Dodo, Medlir. Shelve your feelings on that, it will not happen.
    Uhuru Kenyatta’s rapid response team also was keen enough to answer Mark’s article on the spot here; they believe they have well prepared for the ASP meeting, not only for the main session, but also for the various panels. Just look at the journal… 🙂
    A US senator (Chris Coons) just annouced the “Plan A” of the P-3 for this Friday afternoon’s Security Council meeting. We shall see whether plan A works, or whether plan B (the vote on the issue) is needed.

  4. OtishOtish says:

    For an amendment to the Rome Statute (as opposed to Rules) to even be considered, it must be submitted with at least 3 months notice. Article 121(2) of the Statute:

    “No sooner than three months from the date of notification, the Assembly of States
    Parties, at its next meeting, shall, by a majority of those present and voting, decide
    whether to take up the proposal.”

    Kenya has not given sufficient notice.

    Even if such a proposal is adopted, the amendment would not come into force until a year later. Parts 4 and 5 of Article 121.

  5. Obie says:

    One could arguable claim that Alexander presumably works for the OTP given his rapid fire on seemingly on their behalf. Indeed his quickness to believe that anyone capable of forming an opinion adversarial to his own must be part of the team of the parties before the court is at best symptomatic of the type of assumptions the prosecution presents as fact before the court. Alexander ought to be aware that millions of Kenyans do not share in his views, are seized of events at the ICC and similarly are entitled to their own opinions just as he, a non-Kenyan, is entitled to his own. His emotional outbursts and attacks such as the ad hominem attack seen on Opiniojuris ought to bring into question what vested interests he has in the Kenya cases. Is he an ICC mole like the good NY professor or just another commentator? Next time when Alexander begs to have an opinion from the charged parties, he is free as a lawyer to no doubt engage the legal team of the defence.
    No veto was used at the UNSC and that speaks for itself. Similarly explanations of all the key non-voting parties at the UNSC are unanimous in regards to the Assembly of Parties.
    The absence of a 3 months notice is naturally an assumption not a fact. Even if it were factually late, the ICC won’t have concluded its Kenya cases within 3 or 6 months. A 4 month delay just took place, moving the start of the trial to February. Procedural rules remain an option that can be amended and nothing has changed to date as to the intent to cooperate with the ICC.

    • OtishOtish says:

      “The absence of a 3 months notice is naturally an assumption not a fact”

      – It is a fact. Kenya’s proposals were submitted on 6 and 7 Nov.

      “Even if it were factually late, the ICC won’t have concluded its Kenya cases within 3 or 6 months”

      True. But if you look at the two amendments of the Statute that have been made to date, you will realize that it is a very length process, of years.

      Also, amending Article 27 will never happen, so the length of time is immaterial.

  6. Pingback: Anton’s Weekly International Law Digest, Vol. 4, No. 15 (19 November 2013) | Anton's Weekly International Law Digest

  7. Alexander says:

    I do not think that Makau Mutua – whom you mentioned – will be in The Hague, but I think it possible that you might be, Obie. After all, Githu Muigai has no gift of bilocation, so he will need some understudies.

    The OTP made mistakes. It is important that these mistakes be openly discussed. Many (not all) are due to the legal ineptness of the Common Law trial lawyers before the pre-trial chamber. That has partially changed by now.

    It is also correct that no veto was _needed_ before the Security Council. That has been pretty clear after the last week of October. The veto of one peculiar P-3 nation was only plan C. Thankfully, plan B sufficed (and plan A, alas, failed – to the detriment of all Africa).

    Procedural rules _will_ be amended, just as the Rome Statute will _not_ be amended. You can take that to the bank. What you can NOT take to the bank, is *which* procedural rules will be amended, and how. Both of us only can guess. Only that my guess will be better than yours.

    • OtishOtish says:


      The Working Group on Amendments has for some time been looking at Rules 68 and 100. It has now recommended to the ASP that it adopt proposals to amend those, and that will happen. So we certainly some of the which.

      Then there are the new proposals to amend Rule 134. Anything could happen with those. However, my money is definitely on these being sent off for “further study”.

      Absolutely nothing will happen with the Rome Statute.

      For some strange reason, Obie and his friend simply refuse to deal with reality, hoping that it can be wished into something else. That too seems to be the approach taken by the government of Kenya, with Amina Mohamed leading the wishing. It is approach that can only end in tears, as did the quixotic UNSC deferral quest.

      So, in summary, I think the most that the government of Kenya can expect from this ASP session are few “kind” and “supportive” words.

  8. OtishOtish says:

    “The absence of a 3 months notice is naturally an assumption not a fact”

    – It is a fact. Kenya’s proposals were submitted on 6 and 7 Nov.

    “Even if it were factually late, the ICC won’t have concluded its Kenya cases within 3 or 6 months”

    True. But if you look at the two amendments of the Statute that have been made to date, you will realize that it is a very length process, of years.

    Also, amending Article 27 will never happen, so the length of time is immaterial.

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