ICC should respect Kenya’s sovereignty as trial kicks off

By Charles Kanjama

A regular newspaper columnist can look back and trace their intellectual path on a particular topic over the years. In May 2010, while criticising Kenya’s draft constitution, I noted the danger of introducing international law as a direct source of law in Kenya without Parliamentary input.

In November 2010, Luis Moreno-Ocampo declared that he would seek to indict six Kenyans for post-election violence. Before he released the suspects’ names, I’d already queried, “Couldn’t one argue that the ICC process seeks to scapegoat six for the crimes of a multitude and the failure of a nation?” In January 2011, I ‘interviewed’ Anon, an ‘anonymous’ creation, who declared about the impending ICC process: “I’m sceptical about the ICC trials helping to fight impunity in Kenya.... The Ocampo list was drawn up selectively; selectivity is itself an aspect of impunity... The ICC process by definition ignores 99.9 per cent of the suspects, so it cannot deliver justice to the victims regardless of outcome.”

In February 2011, I again interviewed Anon, and asked whether he opposed Parliament’s then motion urging Government to pull out of the Rome Statute. His answer was candid, “ICC has a credibility problem due to its selective application of international norms... The ICC Prosecutor publicly claimed that Kenya’s case will showcase ICC justice, which is a poor motive for a trial. Until these issues are addressed, Parliament is entitled to request the Government to withdraw.”

In October 2011, just after the pre-trial confirmation hearings, I pondered, “The question for the ICC judges is simple, ‘has Ocampo shown us the fire?’ ‘Fire’ here means evidence that strongly links the suspects to the crimes as perpetrators.” In January 2012 as we awaited the Pre-Trial Chamber’s verdict, I observed: “The ICC’s ruling tomorrow must be analysed critically to see whether it meets the standard of international justice. One of the attractions of the ICC process was the promise that the trials could be kept free of politicisation. That promise has unfortunately failed.” A week later I exposed several fallacies in the talking points of civil society members who were claiming that the ICC decision to send four Kenyans to trial had struck a blow against impunity.

By May 2012, my attitude against ICC had hardened into firm opposition. I warned, “The argument in Kenya’s ICC case is that if Uhuru and Ruto are innocent, they have nothing to fear. The truth is precisely the reverse. Precisely if they are innocent, they have a lot to fear.” So I concluded, “We are at the ICC because many Kenyans remain in its thrall, taken up into an ecstatic expectation of justice that the ICC is structurally unable to deliver.” Five months later in October 2012, I observed, “Kenyans are less confident in ICC’s ability to deliver justice, let alone peace,” Hence I argued that we have a right to use then impending elections as a barometer of our attitude to the ICC. I fortified this argument in December 2012, “The very idea that Kenya’s ultimate sovereign act, internal democracy, should be shackled to foreign sentiment... is abhorrent.”

By January 2013, it was clear that the pendency of the ICC Kenya case was primarily politics. I reviewed the opinion of Judge Christine Wyngaert in Prosecutor v Mathieu Ngudjolo Chui, who argued that the Rome Statute recognised only three ways of committing a crime, but not the ‘indirect perpetration’ used to charge William Ruto and Uhuru Kenyatta. The judge was eventually dropped from the Kenyan case.

So I’ll be blunt. My consistency has earned me the right. Kenya should not spend an hour longer than necessary as party to the Rome Statute. But the ICC suspects should continue co-operating in full, as long as ICC respects Kenya’s sovereignty in procedural rulings on the manner of trial. During trial, if ICC is not flexible enough to allow the Jubilee leaders concurrently discharge their electoral mandate, a sovereign Kenya will have no other option save default. Kenyans already made their choice on March 4th. It’s now ICC’s turn to make its choice.

The writer is an Advocate of the High Court of Kenya