Kenya issues threat to pull out of ICC


Wounded by the failure to marshal enough support to amend the controversial Rule 68 to save Deputy President William Ruto and radio journalist Joshua Sang from the clutches of the International Criminal Court, Kenya has now threatened to pull out of the Rome Statute.

Foreign Affairs Cabinet Secretary Amina Mohamed is expected to fly from The Hague, where the Assembly of State Parties (ASP) is meeting, to the United Nations headquarters in New York to protest the failure to approve Kenya’s requests.

Her trip, it is understood, will begin a new round of shuttle diplomacy to win as many countries as possible to support the Kenyan demands as the ASP meeting continues.

In August, ICC judges allowed the prosecution to use statements of hostile witnesses who had recanted their testimony in the case against Mr Ruto and Mr Sang.

Popularly known as the Rule 68 application, the decision means prosecutor Fatou Bensouda is free to use statements by witnesses who either recanted or withdrew from testifying.

Kenya is using the Assembly of State Parties to demand that the rule should not be used in the Kenyan cases.

Two members of the Kenyan delegation told the Sunday Nation that their attention has shifted to the upcoming African Union summit after their push in The Hague encountered hurdles.

“We have heard concerns about this request being sub judice or interfering with the independence of the court. Neither is it underpinned by legal practice. In fact, it is of concern to us that the unlimited legislative powers of the ASP should be constrained by organs of an institution that is a creation of a treaty negotiated by the very states that form the ASP,” Ms Mohamed told the plenary.

During debate she made it clear she was laying ground for revolt: “Many of us from Africa are feeling unwanted and uncomfortable. Are we a heavy load that you wish to get rid of?”

Senate Majority leader Kithure Kindiki echoed similar sentiments.

“If for whatever reason our agenda is frustrated, we will move to the next course of action and pull out of the Rome Statute and this time around we are not just issuing threats,” said Mr Kindiki who is at The Hague.


He added: “Without the recanted evidence, there is no case against the DP and his co-accused Joshua Sang and that’s why the prosecutor wants to resuscitate it using illegal means.”

The move will, however, have no bearing on the ongoing cases.

In late 2013 when the National Assembly voted to withdraw Kenya from The Hague-based court, the ICC spokesman Fadi El Abdallah said “A withdrawal has an effect only for the future and never for the past.”

Notably, the United Nations Security Council has the powers to refer a case to the ICC even in non-member countries like it happened in the case of Sudanese President Omar al-Bashir.

National Assembly Majority Leader Aden Duale leader said that going to the AU will ensure that Kenya does not act alone.

“We have not seen the last of this matter. We want to prove to the world that Africa can stand up to its aspirations against an imposing west and win. We are signatories to the Rome Statute by will and will walk out any time we want,” he said.

The AU Summit will be held between January 24 and 31 next year in Addis Ababa.

To observers, this is a bullish approach meant to arm-twist the international community to loosen its grip on Mr Ruto.

Writing in an opinion piece separately in this publication, lawyer George Kegoro who is also at the ASP throws a damper on Kenya’s withdrawal route.

“If Kenya goes ahead with its threats to pull out of the ICC, it is likely to be a lonely walk, rather than a walk in the company of African friends. This reality makes whatever decision Kenya has to make a lot more difficult, and it will be interesting to see how Jubilee next moves this matter.”

The move appears to pre-empt the decision of the Bureau of the Assembly, an arm of the International Criminal Court to which the matter was referred after the plenary failed to endorse the changes which would have compelled the court to drop some of the evidence the Ms Bensouda plans to use against Mr Ruto and journalist Joshua Sang.


The ASP Bureau comprises Mr Sidiki Kaba from Senegal (president) with two deputies Mr Alvaro Moerzinger (Uruguay) and Mr Sebastiano Cardi (Italy).

Other countries represented in the committee are Slovenia, Chile, Colombia, Costa Rica, Czech Republic, Germany, Ghana, Hungary and Japan.

Netherlands, Nigeria, Republic of Korea, Romania, Samoa, Slovenia, South Africa, Sweden, Uganda, and United Kingdom also have a slot each in the organ.

They will be trying to reach a consensus on the matter before reporting back to the plenary. Mr Ruto and Mr Sang will know their fate on Tuesday.

After intense lobbying, the Bureau agreed to refer the Kenyan case to the technical committee for drafting before it can be considered for another round of debate.

“The bureau agrees with us that as a matter of principle, no law should be applied retroactively,” Ms Mohamed told the Sunday Nation.

Meanwhile, Kenya will be following keenly so see how the UK reacts to the matter.

President Kenyatta has been on an overdrive to court British support on array of issues including to enlist its support on the ongoing cases.

On Monday, Defence Cabinet Secretary Raychelle Omamo was in London to meet British Foreign and Defence officials, a meeting believed to have discussed the ICC case and, new Defence pact on training of British soldiers in Nanyuki.

There was also mention of the impending visit by Prime Minister David Cameron.

Meanwhile, former Foreign Affairs assistant minister Peter Odoyo has termed as a “false flag” efforts by Ms Mohamed and Ms Omamo to convince the ASP that it was wrong for the court to use Rule 68

“It is wrong for the two alongside the Kenyan leaders at the Hague to create high hopes that countries can make a decision at the meeting. Both Ms Omamo and Ms Mohamed know that decisions are made at home countries and they come with an agreed position. The lobbying by the Kenyan delegation should have been done before the conference,” he told the Sunday Nation on Saturday.

He added: “Where success is not likely, Ms Mohamed should have told the President and the country. They should have told Kenya the truth.”