/ 17 September 2013

Kenya cannot escape the spirit of international law

Kenya's President Uhuru Kenyatta.
Kenya's President Uhuru Kenyatta. (AFP)

Kenya's withdrawal from the Rome Statute establishing the International Criminal Court (ICC) will be debated in the national assembly on Thursday.

The prospective Bill seeks to not only withdraw Kenya from the Assembly of States Parties to the Rome Statute, but to also repeal the International Crimes Act (No 16 of 2008). This initiative has been met with heavy criticism from Kenyans and segments of the international community, against members of Parliament and the political elite in support of the motion, after it was recently tabled before the House. This move is seen as a renewed effort by the political elite in Kenya to scuttle the ICC trials of the President Uhuru Kenyatta and Deputy President William Ruto.

In March 2013, MPs began their five-year mandate and in this intervening period, they have not endeared themselves to the Kenyan electorate. Recently, MPs aggravated the public by voting as one block to increase their salaries (again) and ignoring the recommendations of the government watchdog on public service wage bill, the Salaries Remuneration Commission (SRC). The SRC urged MPs to be satisfied with the pay package that had been set for MPs prior to their election in March 2013 and in line with keeping the country's wage bill as equitable and fair as possible to all public servants. 

As can be expected, civil society organisations in and outside of Kenya have published strongly worded statements against the move by Parliament seeking Kenya's withdrawal from the Rome Statute. Hardly a day has gone by in this last week without the publication of reports and statements of concerned parties relating to the intended withdrawal. If the Bill passes, it will erode the very gains that the country has made through legislation in the fight against impunity for international crimes following the Kenya national dialogue and reconciliation process that brought an end to the 2007/2008 post-election violence. This national dialogue and reconciliation process led to the creation of institutions and frameworks that would assist Kenya to deal with past injustices and secure a peaceful future. 

On their part, the international community, including the ICC and the Assembly of States Parties (ASP) to the Rome Statute, has reminded anyone who cares to listen within the Kenyan government, that withdrawal from the Rome Statute does not affect the conduct of trials against the Kenyan president and his deputy. In addition, under the provisions of international law captured in the 1969 Vienna Convention on the Law of Treaties, Kenya must comply with obligations, including that of cooperating with the ICC as a requirement under the Rome Statute, arising from the subject matter inquiry before the trial chambers. Those are norms that apply to any international treaty and withdrawal from being a signatory to a treaty does not automatically or immediately release a state from all obligations relating to the treaty. A state can choose to disentangle itself from a commitment it willingly made to the letter of the law in an international treaty, but it is not as easy to be free from the spirit of the law.

Customary norms
The preamble to the Rome Statute captures the very essence of the treaty, which Kenya is bound to as a state party and further bound inseparably by customary international norms, particularly because the international community recognises that millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity. These customary norms dictate that it is the duty of every state to investigate and prosecute persons accused of committing these types of atrocities or otherwise transfer these individuals to another criminal jurisdiction that is able so to investigate and prosecute within the requisite standards. 

From the sentiments and statements expressed against the Kenyan MPs, there is a resistance to the arguments against the withdrawal from the Rome Statute. Neo-colonialist sentiments and rumours are milling about town. It certainly hasn't helped that prior to the March 2013 elections in Kenya, some members of the international community issued de facto ultimatums and threats to Kenyans, in terms of limiting Kenyan governmental interaction to "essential business" should they have voted for the ICC accused persons. Kenyans saw this as an affront to their right to select their own leaders.

Ultimately, this misguided attempt by Parliament of a wholesale purchase of salvation for the president and deputy president from the ICC trials through this omnibus Bill must therefore be approached from a different perspective. One which dispels the rumours about the perceived ill-intentions of the ICC intervention backed by Western imperialists and the opportunity presented to the country and its political elite to deal conclusively with what has become systemic injustice to Kenyans over the years. Impunity for gross human rights violations and a widening rift between the political elite and their constituents caused by little or no form of accountability has been Kenya's tale in its 50-year independent history. Kenyans remain an aggrieved people by the state and state structures. This is clear from the numerous accounts of injustices documented most recently in the Kenya truth, justice and reconciliation commission report. 

A number of processes will unfold this week; firstly, one can only hope that there will be a debate in Parliament on Thursday – with both proponents and opponents of the Bill, as the democratic ethos demands. Secondly, that the debate will be robust and interrogate the motion critically. One unexplored avenue, that I believe could turn this whole debate around, is the opportunity presented by the situation in Kenya at the ICC, to develop the emergent principle of positive complementarity. The office of the ICC prosecutor interprets positive complementarity as a coordinated approach to prosecution of international crimes by both the ICC and national criminal justice systems. This form of cooperation is between the ICC and states – after an intervention by the ICC has been initiated: voluntarily by a state; by the UN Security Council; or by the ICC prosecutor, and the ICC pre-trial chamber authorises investigation and confirms charges against certain individuals. Specifically, the ICC would conduct the trials of those deemed to be most responsible for the international crimes, while national criminal justice systems would investigate and prosecute intermediate and lower levels of perpetrators of these crimes. 

The questions that should be asked are: how can the ICC trial procedure assist an international crimes division of the Kenyan high court to investigate and prosecute intermediate and low-level perpetrators of the post-election violence?

Can the evidential narratives from the ICC trials be introduced in the Kenyan courts and what legislation should the national assembly consider to facilitate this and other similar processes?

The Kenyan director of public prosecutions Keriako Tobiko tasked a team in his office to evaluate the status of post-election violence related cases in 2012. The findings indicated evidentiary and legislative loopholes and gaps preventing effective prosecution of thousands of cases and in essence a denial of justice to hundreds of thousands of victims of the 2007/2008 post-election violence.

Lessons can be gleaned on how positive complementarity can practically work in Kenya from the Balkan States in their quest for international criminal justice. A clear parallel in this regard can be seen in the cooperation between the War Crimes Chamber of the Courts of Bosnia and Herzegovina and the International Criminal Tribunal for the former Yugoslavia, an international criminal tribunal, with many similarities to the ICC and established by the UN Security Council to deal with the atrocities committed in the Balkan States. Legislators in Bosnia and Herzegovina, being cognisant of the limitations of the tribunal (including temporal mandate), established the courts and supporting legislation for their full functioning in the post-conflict state.   

Without a doubt, there are many challenges faced by the ICC, particularly relating to the conduct of the Kenya cases. Equally there are opportunities presented within the Rome Statute system to advance the fight against impunity even at the state level. What we need now in Kenya is to draw the quid pro quo for the national criminal justice system from the processes in The Hague.

Legislators should rather propose amendments to strengthen existing legislation, and enact new laws that support and ensure the protection of human rights and the respect for the rule of law. It is the time to neither repeal the International Crimes Act (No 16 of 2008) nor engage in regressive actions of withdrawal from the Rome Statute. MPs should not throw out the baby with the bath water.

Allan Ngari is Project Leader for Kenya and International Justice at the Institute for Justice and Reconciliation in Cape Town and an Advocate of the High Court of Kenya. 

You can follow him on Twitter: @justrutz