The Kenyan parliament voted on 5 September 2013 to back a call for government to withdraw from the Rome Statute of the International Criminal Court (ICC), passing a motion 'to suspend any links, cooperation and assistance' to the court.
Although this motion was probably intended to shield the country's top leaders from prosecution, withdrawing from the ICC neither releases Kenya from its obligations nor prevents the ICC from prosecuting President Uhuru Kenyatta and Deputy President William Ruto for alleged crimes against humanity.
This action by Kenya is a first step in an effort to mobilise other African countries that are states parties to the Rome Statute to follow suite and withdraw from the ICC. The plan is to engender the narrative that the ICC is targeting Africa and is a 'neo-colonialist' instrument of the West. This narrative has gathered currency because of the fact that all the current cases before the ICC stem from Africa.
Unfortunately, this narrative tries to create empathy with those accused of heinous crimes at the expense of the victims of those crimes by playing on Africans' anti-colonialist sentiments. This narrative resonates with Africans because we know and can put a face to those who are accused by the ICC: President Omar al-Bashir of Sudan, Kenya's President Kenyatta and Deputy President Ruto, and Jean-Pierre Bemba of the Democratic Republic of Congo (DRC), to name a few.
However, their alleged victims remain faceless. Very few people can name one person out of the over 200 000 who have died in the 'genocide' in Darfur, for which al-Bashir faces charges. The same goes for the more than 1 100 people who died in the post-election violence in Kenya, over which Kenyatta and Ruto are charged. It is because so few of us can name any victims that the narrative of a 'neo-colonialist' agenda against Africa sticks. We are focused on the wrong choice - between the alleged perpetrators who seem so familiar vs. the 'neo-colonial' court. The real choice, however, is between the accused and the nameless victims who, until they are named and given a face, remain forgotten and thus further victimised by the absence of justice.
The gamble by purveyors of the 'neo-colonialist' court narrative is that the victims are forgotten and we all beat up on the ICC in an attempt to protect 'our kin'. In doing so, we undermine an important - and in some cases, the only - source of justice for the thousands of African victims of genocide and crimes against humanity. It is the cruellest gamble and the odds are in the gamblers' favour.
The situation in Kenya has deteriorated to this extent because of three mistakes that were made. In 2007, Kenya went to the polls. The voting process was largely peaceful, producing results that were close but suggested that the opposition party had won. The Election Commission then announced results that were inconsistent with what was coming out of the field and gave the elections to the incumbent, President Mwai Kibaki. The Supreme Court wasted no time in swearing in the 'victorious' president. Riots erupted in informal settlements and clashes between the supporters of both parties intensified. By the time the dust had settled over 1 100 people had been killed and many more internally displaced.
The African Union (AU) intervened by appointing former United Nations (UN) Secretary-General Kofi Annan as mediator. Annan convinced Kibaki and his rival, Raila Odinga, to form a coalition government and this calmed the violence. Furthermore, the Kenyan government appointed the Waki Commission to investigate the post-election violence. The Waki Commission eventually recommended that a local tribunal investigate and prosecute those suspected of criminal conduct. The Kenya parliament voted against such a tribunal, which was mistake number one.
It became clear that Kenya was never going to undertake any investigation or prosecution. The Waki Commission handed its dossier to Annan with a recommendation that he submit the matter to the ICC, which he eventually did. The ICC prosecutor held discussions with the Kenyan authorities on 17 September 2009 and received their full cooperation. It would appear that the Kenyan politicians felt the matter would be better handled by the ICC, as they wanted to insulate themselves from accusations that one side was prosecuting the other or each was failing to shield its own. The ICC provided the critical element of political deniability. This was mistake number two.
The ICC proceeded with its investigation and initiated prosecutions, including against Kenyatta and Ruto, who later won the 2013 elections and became President and Deputy President of Kenya respectively. The new government - now led by two leaders accused of crimes against humanity - quickly hatched plans to put the ICC on the back foot. The first was to rally Africa to its cause. At the AU summit of May 2013 a resolution was passed in relation to the ICC-Kenya cases following on from a previous resolution calling for non-cooperation with the ICC in respect of the arrest warrant for al-Bashir.
The difference however that was not considered was that neither Kenyatta nor Ruto were subject to a warrant of arrest, but here they were throwing themselves in the same basket as al-Bashir, who is wanted by the ICC. In fact, up to that date both Kenyatta and Ruto were cooperating with the ICC. The Kenyan parliament's motion calling on the government to withdraw from the ICC and the AU's decision in May give the false impression that the two accused can fail to cooperate and Africa and local parliaments will protect them. This is mistake number three.
What is the impact of a Kenyan withdrawal from the Rome Statute likely to be? The Kenyan delegation to the next AU summit is likely to receive little resistance if it campaigns for an AU decision that African countries withdraw from the ICC. The AU functions no differently than a labour union - it takes care of its own, in this case current and previous presidents. The challenge will arise when each country has to carry out this decision to withdraw. In countries such as South Africa, which have already passed legislation adopting the Rome Statute, this would be an exceptionally difficult case to make.
The other challenge is that, according to the Rome Statute, a withdrawal can only take effect after one year after receipt of notification. It further provides that a 'State shall not be discharged, by reason of withdrawal from its obligations arising from while it was a Party ... nor shall it prejudice in anyway the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective'. This means that the ICC is compelled to continue the cases against Kenyatta and Ruto, despite Kenya's withdrawal.
If Kenyatta and Ruto fail to cooperate, the ICC will have to issue a warrant of arrest against them. All ICC member states, including those that may chose to withdraw from the Rome Statute, will still be legally obliged to cooperate with the court on the Kenyatta and Ruto cases.
Kenyatta should plan his next move with care. He may be thinking that he has friends in the East, but he knows that a friend who has a hold over you will soon be far too expensive to call a friend. He needs to maintain ties with his Western allies to ensure that Kenya gets a good deal from the East. For his own good and for the good of Kenya, Kenyatta should continue to cooperate with the ICC and augment his legal advisers with those who first led Kenya to join the Rome Statute, since he will continue to need their knowledge even if his government withdraws.
Sivu Maqungo is Senior Research Consultant in the Transnational Threats and International Crime Division of the ISS.