UN Photo/Eskinder Debebe

“Don’t be Vague; Let’s Go to Hague”: Kenya’s Tumultuous Relationship with the ICC

UN Photo/Eskinder Debebe

Don’t be vague, let’s go to Hague,” was the catch-phrase coined by Kenyan parliamentarians as they votedagainst a Bill proposing the establishment of a local tribunal to try those responsible for the 2007/2008 post-election violence that led to over 1000 deaths and the displacement of more than 600,000 Kenyans.

Consequently, the abortive efforts to set up the local tribunal necessitated the intervention of the International Criminal Court (ICC) under the court’s complementarity principle, culminating in the current cases against the President of Kenya, Uhuru Kenyatta and the Deputy President, William Ruto. Both facing trial for crimes against humanity.

It is against this backdrop that, on 25th and 26th August 2014, the African Union convened a meeting in Nairobi, Kenya with government officials of African Union member countries. The agenda of the meeting was promoting the ratification of African treaties that will extend the African Court’s jurisdiction to trials for crimes against humanity, while granting immunity for sitting leaders and other senior officials.

Kenya enjoyed relative stability within the East and Horn of Africa region until the unprecedented post-election violence rocked the nation. Although the elections triggered the violence, the root causes of the conflict were historical land injustices, marginalization and distribution of resources. Kenya’s cycle of violence during election periods can be attributed to among other compelling reasons, the electorate’s polarization along ethnic lines rather than on the differences in political ideologies. The roots of negative ethnicity among Kenyan people can be traced back to the divide and conquer policies of colonial rule aimed at quelling dissent. Similarly, post-independence governments employed strategies of political mobilization of ethnicity, further entrenching negative ethnicity among Kenyans. This political ethnicization pushed Kenyan communities to the hilt in 2007.

Background

A Kofi Annan (African Union) led mediation process following the disputed 2007 elections eventually set in motion a series of institutional, legal and constitutional reforms as part of a broad range of transitional justice processes. Key among the transitional justice measures was the establishment of a Commission of Inquiry into the Post-Election Violence. The Commission handed over to the International Criminal Court prosecutor a sealed envelope containing a list of alleged masterminds behind the violence. Among those named in the list were the incumbent president and his deputy as well as others government officials who earned the moniker ‘Ocampo 6’.

Subsequently, in the run-up to the 2013 elections, the president and his deputy, who belong to two of the most populous yet rival communities; formed a counterintuitive alliance with their election campaign revolving entirely around the ICC as a neocolonial machinery.

The ICC debate dominated national conversation throughout the election periods resulting in a polarizing effect among Kenyans. Owing largely to the suspects’ heavy anti-ICC rhetoric through the media in contrast to the limited public outreach by the ICC on the cases.

It is against this backdrop that the Kenyan situation before the ICC is notable in several respects. This was thefirst case initiated (in proprio motu) by the prosecutor, on his own volition. Other cases before the court have either been through a UNSC referral or by the countries’ requests. It is also the first case in which a sitting president is on trial, in the court’s decade- old history. Granted, the incumbent president ran for office after beingcharged. Admittedly, Kenya has been a game changer in the discourses on ICC in Africa.

Regional and domestic impact

The election of an ICC suspect into the highest office in Kenya reveals that administration of justice and politics are not mutually exclusive, particularly in Africa. The political realities of the Kenyan case cannot be ignored, as erstwhile chief prosecutor of the Special Court of Sierra Leone aptly put it, “Politics is the bright red thread of modern international law”. It is impossible to view the ICC-Kenya debate without giving due regard to Kenya’s strategic position within both the regional and international context. On both fronts, other interests have inadvertently pervaded the debate.

Under the thinly veiled pretext of cooperation with the court, the incumbent President has frustrated the efforts of the ICC through shuttle diplomacy across the continent lobbying for en masse withdrawal from the Rome Statute. The current ICC debate in Africa fomented by the Kenyan cases, reveals the competing interests between sovereignty and the pursuit of justice. Notwithstanding the fact that 34 of the 52 African states are signatories to the Rome Statute and the current African cases before the ICC were mainly as per the states’ requests. The ICC-Africa relations were dealt a further blow with the AU-backed immunity provisions that are counterintuitive to the AU’s underlying principle of fighting against impunity. Arguably, impunity under the guise of sovereignty has trumped justice, despite heavy resistance from civil society organizationswithin Africa.

On the international arena, Kenya’s position has a significant impact on the ICC. There is a symbiotic relationship between Kenya and several international states; as well as an intricate relationship between the Court and these international states that are not signatories to the Rome Statute. This clearly manifested in the voting among UN Security Council members during Kenya’s bid for deferral of the ICC cases in the aftermath of terrorist attacks in Kenya last year.

Noteworthy is the fact that UK and US abstained while China voted in favour. Several compelling reasons for this include: Kenya’s relationship as a US-ally in the war against terror; UK’s military ties with Kenya and economic interests; and China’s growing dominance in Kenya and Africa as trade partners. Whereas the European Union has a policy of minimum essential contact with ICC suspects. In the international arena it appears to be a trade-off between international justice and stability.

Admittedly, Kenya’s ostensible cooperation with the court has ensured the country does not become a pariah within the international community, as for instance Sudan.

Contrastingly, the Court’s impact on Kenya cannot go unmentioned. The cases have increased the impetus for national conversation on accountability and the fight against impunity. Never before have highly ranked officials faced criminal charges.

A landmark decision by Kenyan courts on the issuance of an arrest warrant for the ICC suspect, President Omar Al Bashir, should he travel to Kenya, is an unintended yet laudable consequence of adherence to the Rome Statute that has contributed to strengthening the rule of law in Kenya. The court’s progressive judgment relied upon the Kenyan Constitution’s ratification of international as part of Kenyan law, thus tackling impunity through national courts. Additionally, oft-ignored victims of post-election violence have to a certain degree been formally acknowledged through the victim registration process, providing some semblance of restorative justice.

Although it remains to be seen what the outcome of the trials will be, for now the court serves as the only platform that embodies the words of Kenya’s national anthem, “justice be our shield and defender” for the victims of post-election violence who more than half a decade later languish in camps, hoping for some form of justice.

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