JURIST Guest Columnist Charles C. Jalloh, of the University of Pittsburgh School of Law says that Kenya’s opting to withdraw from the International Criminal Court poses major risks for minimal gain …

On September 5, 2013, a majority of Kenya’s National Assembly voted in favor of a motion, introduced by the Leader of the Majority Party, Aden Duale, urging the government to “urgently undertake measures to immediately withdraw” the influential East African nation from the Rome Statute which established the International Criminal Court (ICC). The motion claimed that there has been a “fundamental change in the circumstances relating to the governance” of the country given that President Uhuru Kenyatta and Vice-President William Ruto, both of whom are under indictment by the ICC for alleged involvement with crimes against humanity, were “lawfully elected” under the Constitution of Kenya [PDF] on March 4, 2013.

The motion, which also resolved to soon table a law that would repeal the country’s International Crimes Act, which domesticated the Rome Statute, raises several important issues at the intersection of law and politics. I argue that there are compelling legal reasons why the Kenyan government should not heed what the opposition party has described as an “ill considered” recommendation urging the executive branch to make Kenya the first and only country to withdraw from the ICC.

I submit that the reputational and other costs of withdrawing from the ICC regime for Kenya far outweigh the largely symbolic political benefits that might be gained from any such withdrawal. This is all the more so because such a move will have no legal effect on the ongoing cases against the three Kenyans indicted by the Court.

Context: Kenya Failed to Investigate and Prosecute

Before turning to my main argument, I should recall that the ICC is today involved in efforts to prosecute those allegedly responsible for fomenting the post-election violence in Kenya, from December 2007 to February 2008, because Kenyan authorities initially failed to pursue those responsible. Yet, according to the Commission of Inquiry into the Post Election Violence (CIPEV) [PDF] which was tasked with investigating the crimes, over 1,100 Kenyans were slaughtered in about two months. Thousands more were injured, while over half a million others were displaced. Many of the attacks targeted innocent victims based on their ethnicity, presumed political affiliation, or both.

The CIPEV concluded that there was historically a chronic lack of domestic capacity, but even more importantly political will, to prosecute powerful people when they instigated such election-related offenses. It therefore recommended the establishment of a argued more fully elsewhere in respect of the court’s relations with African States.

Secondly, the Kenyan leadership should remember that the ICC has, in recognition of this unprecedented situation resulting from the March 2013 elections, acted both pragmatically and flexibly. As part of this, it has continued the liberty of the accused and granted the defendant requests for important accommodations for the trial phase. These would enable the president and his deputy to balance their official functions with their right to appear, consistent with the presumption of innocence, before the court to defend their good name.

Consequently, it is against the interests of those personally accused to at once be before the ICC protesting their innocence and pledging unconditional cooperation with the judicial process, only to subsequently endorse measures that would undermine the tribunal’s adjudicative function. As demonstrated here, irrespective of whether Kenya withdraws from the ICC, its obligations to support the crucial justice process started under the Rome Statute will subsist. The cases will continue, so at best, Kenya would only score political points from any retreat from the battle against impunity at this stage.

Finally, stepping back to frame a bigger picture for average Kenyans, I note that Messrs. Kenyatta and Ruto enjoy fundamental fair trial rights under Article 67 of the Rome Statute. Foremost, among these, they are presumed innocent until proved guilty before the court in accordance with the applicable law. Therefore, it is not up to the accused President Kenyatta, Vice-President Ruto or Mr. Sang to prove their innocence. Rather, it is Gambian Chief Prosecutor Fatou Bensouda’s job to prove their guilt, if she can proffer convincing evidence to that effect. The burden on her is high, as the law rightly demands that a majority of three experienced judges of Trial Chamber V, presided over by Judge Chile Eboe-Osuji of Nigeria, independently evaluate that evidence to establish their guilt beyond a reasonable doubt for indirectly co-perpetrating crimes against humanity. It is only if such a finding is reached that penalties, and the provisions of the 2010 Constitution that permit the impeachment of leaders, would become an issue.

By the same token, as the defendants have insisted throughout this post-election violence saga that they are innocent, they must also be very confident that they can raise a reasonable doubt about the Prosecutor’s allegations. Doing so, in turn, would lead to their inevitable acquittals. Thus, Kenyans must insist that the government exercise restraint and let the ICC justice process take its natural course.

Charles C. Jalloh is currently a Visiting Associate Professor at the FIU College of Law and an Assistant Professor at the University of Pittsburgh, School of Law. A guest columnist for JURIST on issues of international criminal law, he has worked in the Rwanda and Sierra Leone Tribunals and has been a visiting professional at the International Criminal Court. He has published widely on issues of international criminal justice in Africa. His most recent work is an edited book, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Law, from Cambridge University Press (2013).

Suggested citation: Charles C. Jalloh, Kenya Should Reconsider Proposed Withdrawal from the ICC, JURIST – Forum, September 13, 2013, http://jurist.org/forum/2013/09/charles-jalloh-kenya-icc.php.