JURIST Guest Columnist Roland Adjovi, Academic Director of the Arcadia Center for East African Studies says that while the Kenyan vote to withdraw from the ICC masks the greater danger of polarization in Africa opposing much needed applications of international law …

On September 5, 2013, the Kenya Parliament adopted a motion for repealing their International Crimes Act [PDF], which domesticated the Rome Statute. The long-term outcome of the motion is the subsequent withdrawal from the Rome Statute. This has been extensively covered in the news as a worrisome circumstance. However, I wish to disagree for two reasons while providing evidence that the worry should be elsewhere, less covered in the news. Before embarking on why the worry is misplaced, one needs to have a proper overview of the facts.

In December 2007, there were general elections in Kenya with two political coalitions in opposition: One led by the incumbent president, Mwai Kibaki; and the other led by Raila Odinga. Kibaki is alleged to have cheated and been wrongly declared the winner. That allegation, and the subsequent secret and quick swearing in ceremony, led to what is now known as the post-elections violence (PEV) in Kenya, resulting in some 1500 deaths and hundred of thousands displaced. Under the mediation led by an AU panel chaired by Koffi Annan, the parties agreed and set up various commissions among which one had the mandate to investigate the crimes committed during the crisis. That PEV Commission, or Waki Commission, issued its report with a confidential list of persons who appeared from the investigations as the most responsible for the crimes. The Commission recommended criminal prosecution before a Special Tribunal for Kenya or, preferably, at the ICC because the Kenyan judiciary could not be trusted. The Kenyan Parliament, with the support of both parties, failed to set up the Special Tribunal and the AU Mediation Panel [PDF] decided to refer the matter to the ICC. As a consequence, Annan handed over to Luis Moreno-Ocampo, the then-Prosecutor of the ICC, the confidential list. After preliminary investigations, the Prosecutor successfully sought authorization from the Pre-Trial Chamber to open a situation. He later sought the confirmation of two indictments, one against Uhuru and two others on the side of Kibaki, and the second against Ruto and two others on the side of Odinga. After the confirmation hearing, one accused from each indictment was discharged. Later and upon her request, Fatou Bensouda, the new ICC prosecutor, obtained the discharge of the remaining co-accused of Uhuru: only three Kenyans remain therefore in the two cases for trial. The critical issue here is the status later on acquired by two of those three accused: in the latest elections in Kenya (March 2013), a new political coalition won with Uhuru the President succeeding to Kibaki, and, surprisingly, Ruto as the Vice-President. Since then, the Kenyan executive has been very active on two opposing ends: both Uhuru and Ruto have continuously stated that they would fully cooperate with the ICC, but their government has been militating for African States to stand with them against the ICC.

The move in the parliament is therefore not new but just another political step in responding to the continuation of the criminal procedure against the two heads of the Kenyan executive. But this is just a motion and not yet an act. It is just the starting point of the legislative process and there is no guarantee that any bill will be agreed upon, let alone that such a bill would ever be adopted into an act. There is therefore still a long way before we have a binding instrument for withdrawal from the ICC Statute. And the debate in the parliament has been very heavy, with the opposition strongly opposing the motion: the opposition ended leaving the meeting and only the ruling party voted for the motion. In addition, if ever that act was adopted, it would be effective only a year after having been properly notified to the UN Secretary General while it would not have any impact on the present cases which are at the heart of the move. As a consequence, this motion should not have led to any panic in the movement in support of the ICC. However there is a hidden and ongoing plan at the continental level which is more serious.

Indeed, a coalition of African leaders panicking on the prosecution by the ICC is growing and quite successful in a political brainwash on the continent. That coalition was composed of [President of Sudan Omar] Al Bashir, [Former Libyan President Muammar] Gadhafi and [President of Rwanda Paul] Kagame. Now, the Kenyans have joined it and have dragged their other East African fellows, especially [President of Uganda Yoweri] Museveni with them. But, their argument on political bias by the ICC is misleading and one needs to consider how these cases came to the court. The majority was referred by the African states themselves: Democratic Republic of the Congo, Uganda, Central African Republic, Côte d’Ivoire and Mali. Two were referred by the UN Security Council where none of the three African States sitting objected: Res. 1593 on Sudan (Algeria, Benin and Tanzania) and Res. 1970 on Libya (Gabon, Nigeria and South Africa). In the first instance (Sudan), Algeria abstained but did not oppose the vote, while in the second instance (Libya) even South Africa voted in favor of the resolution. Only the situation of Kenya is the result of a proprio motu decision of the ICC Prosecutor, but one needs to recall that the strong suggestion came from the Kenyan PEV Commission led by a Kenyan judge, Waki. In fact, in most cases, it seems that African leaders are the only to be blamed for bringing the ICC into their domestic politics. But the political campaign is so successful that many Africans are convinced that the ICC is against Africa. This week the AU will hold a meeting [PDF] on the way forward with a potential concerted plan for withdrawal, boycott or alternative judicial mechanism. Any such move would be highly regrettable for the African people.

Roland Adjovi is the Academic Director at the Arcadia Center of Arcadia University in Arusha, Tanzania. He previously served as Senior Legal Officer for the Registry of the International Criminal Tribunal for Rwanda and as legal assistant for the Organization for African Unity, as well as serving as Editorial Assistant for the African Yearbook of International Law (through AFIL, the African Foundation for International Law).

Suggested Citation: Roland Adjovi, Kenya Withdrawal from ICC a Symptom of Political Brainwash, JURIST – Forum, Oct 8, 2013, http://jurist.org/forum/2013/10/roland-adjovi-african-brainwash.php