What happens if Kenya pulls out of the Rome Statute

By WAHOME THUKU

The decision by Parliament to have the International Crimes Act repealed could reverse major steps made in reforming the Kenyan Judiciary and the criminal justice system.

Not only will it affect any possible prosecution of other criminal cases arising from the 2007-08 post-election violence, it will also render a devastating blow to efforts by the Judiciary to set up an International Crimes Division of the High Court.

When the Act is repealed and Kenya withdraws from the Rome Statute, the local criminal justice system will be thrown into a disarray as regards dealing with international crimes.

On Thursday, Parliament passed a motion requiring the government to introduce a bill in the House within 30 days, to repeal the International Criminal Act in its totality. If the bill is tabled and approved, the Act, which was enacted in 2008 and took effect on January 1, 2009 will be deleted from the list Kenyan statutes.

International crimes

This is the Act that domesticates the Rome Statute, which establishes the International Criminal Court.

The Act was enacted in 2008, three years after Kenya ratified the Rome Statute in 2005. The preamble of the Act states that it’s to make provisions for the punishment of certain international crimes, namely genocide, crimes against humanity and war crimes and to enable Kenya to co-operate with the ICC.

Most of the provisions of the Act are lifted from the Rome Statute, especially on the definition and description of crimes and the punishments. The Judicial Service Commission (JSC) has since May last year been actively working on modalities to establish an International Crimes Division of the High Court.

On May 12, 2012 the JSC appointed a committee to put in place mechanisms for the establishment of the division. The committee was chaired by Commissioner Samuel Kobia. Other members were judges Isaac Lenaola and Mohammed Warsame,  Chief Magistrate Emily Ominde and LSK representative in the JSC Florence Mwangangi.

According to a report prepared by the committee, the proposed division will deal with all the other pending criminal cases arising from the PEV. It would also deal with transnational crimes such hijackings, money laundering and cybercrimes.

The division is also to be empowered to deal with reparations and compensation of victims of international crimes committed in Kenya.

The committee recommended to the Chief Justice Willy Mutunga to establish the division.

“This is because no domestic justice mechanism has been established to hold perpetrators of such crimes accountable,” their report says. “This is the division that would ensure that the ICC becomes a court of last resort.

Creation of the division would ensure that the principles of complementarity and the sovereignty of the state are upheld,” the JSC committee argued. Other players in the justice system such as the State Law Office and the DPP were to be incorporated in the establishment of the division. It’s expected to take up any remaining cases from other courts where they may have already commenced.

Prosecution challenges

Last November, the CJ described the proposal as the Judiciary’s response to the various international and transnational crimes that are responsible for ruining Kenyans security, stability and economy.

Without a local law to deal specifically with the international crimes, such a division would lack legal foundation.

Section 8(2) of the International Crimes Act provides that the crimes proscribed in it shall be tried in the High Court of Kenya. Presently, only murder cases are heard by the High Court with all others being heard by the magistrate courts.

This means that with the repealing of the Act, a crime like perpetration of rape, which is one of those President Uhuru Kenyatta and William Ruto are facing at The Hague, can only be handled by a magistrate court in Kenya.

The Kenyan criminal statutes have no provisions for reparations and compensation of victims.

There is no other law in Kenya, which directly caters for crimes such as displacement of persons, war crimes and crimes against humanity, all of which are covered in the Rome Statute and the International Crimes Act. In many African countries including Kenya, prosecutors are faced with the challenges of selecting the law to use in prosecuting international crimes. Terror suspects are often charged with being in possession of weapons or being members of proscribed gangs, due to lack of specific laws on terrorism.

Uganda enacted the International Crimes Act in 2010 which domesticated the Rome Statute.

However even with the repealing of the Act, the provisions of the Rome Statute will remain in force in Kenya until the country pulls out of the treaty.

Article 2(5) of the constitution provides that the general rules of international law shall form part of the law of Kenya. Article 2(6) adds that any treaty or convention ratified by Kenya shall form part of the law of Kenya.