Kenya is hitting back at the International Criminal Court (ICC) for the second time in a move that will take African resentment against this controversial body a step further with the hope of undermining it.
Earlier this month the Jubilee Coalition led by President Uhuru Kenyatta passed a motion calling on the government to withdraw from the Rome Statute. The motion awaits procedural and practical steps that should be culminated with a formal writing from the government to the United Nations.
Interestingly though, many of those who spoke on the occasion cited the example of the United States and its efforts ensuring immunity of US nationals from prosecution by the ICC. The US went as far as concluding bilateral agreements with some countries to protect US citizens if they were ever to come under the ICC jurisdiction.
The ICC came under the spotlight after the indictment of Sudan President Omar Bashir. The irony is that Sudan’s case was referred to the ICC through a UNSC decision, where three of its members: the US, Russia and China are not ICC members.
And that is how it became relatively easy for Sudan to put its case against these double standards. Moreover, indicting Bashir was seen as a risky route given the fact the country was entering into a delicate peace process and the ICC move was seen threatening this development.
The African Union (AU) — noticing that all those indicted by The Hague-based tribunal were Africans — started to lash out at it and then culminating with a resolution asking its member states to abide by their AU commitment of not cooperating with the ICC. At least two countries Chad and Nigeria, both of them ICC members, opted to follow that advice allowing Bashir to visit them, shunning aside calls from western capitals to arrest Bashir.
The growing anti ICC sentiments took a remarkable turn during the Kenyan elections earlier this year, when the Uhuru Kenyatta and William Ruro won elections for the country’s top posts of president and vice president respectively, both of them accused by the ICC for their alleged role in inciting the 2007 violence that led to the deaths of around 1,200 people.
Both Washington and London called publicly on the voters not to elect the two, but in a clear snub Kenyatta and Ruro won. Both western capitals were to swallow their pride and decide to engage with the newly elected officials. They started by allowing their respective ambassadors attending the celebrations of the new president and his deputy taking oath and later British Prime Minister David Cameroon received Kenyatta, who was invited to attend a conference on Somalia.
Both Kenyatta and Ruro were seen making use of the ICC factor to ensure their victory over their opponents, drumming on national pride and that Kenyans need to take their fate into their own hands and not to be subjected to foreign pressures. Debatable will also be the issue whether it is too early to undermine the sovereignty of the state through the use of the ICC indictment as attempts to bring Bashir to justice have failed so far.
The Kenyan Parliament’s decision will take some time to shape up, in terms of putting it into a concrete executive step and formal writing from the government to the United Nations informing it of its official withdrawal. Given the fact that the government is led by Kenyatta that seems to be a foregone conclusion.
But more serious is the fact that the opposition boycotted the motion. Such moves weaken the case as to why to withdraw from the ICC and make it yet another controversy and debate along domestic political strife.
Still Kenya stands a good chance to lead on the issue of the ICC through ensuring justice within its own borders in an unmistakable way. Justice after all needs to be seen taking place, not talked about only.
As for the ICC, it just confirms the old dictum that international law is simply legalizing the actual balance of power on ground.
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