Kenya’s bid to alter ICC rules flops at The Hague

Kenya has lost its bid to have recanted evidence in the International Criminal Case against Deputy President William Ruto dropped after the Assembly of State Parties left the decision in the hands of the court’s Appeals Chamber.

Deputy President William Ruto and journalist Joshua Sang have appealed against a decision by the Trial Chamber to allow use of recanted evidence retrospectively in their case in line with the Assembly of State Parties’ resolution in 2013 that such evidence can be admitted where it was ascertained that witnesses were interfered with.

The ASP late Thursday passed an omnibus resolution “after lengthy diplomatic negotiations” but only after withdrawing two paragraphs that had been proposed by Kenya to amend Rule 68, which allows the use of recanted evidence, to the effect that the clause cannot be applied to the ongoing cases.

Most members of the ASP had decided that they should not be seen to be interfering with the independence of the court.

The Kenyan delegation led by Foreign Affairs Cabinet Secretary Amina Mohammed had hinted at Kenya withdrawing from the Rome Statute if the state parties did not stop the ICC from applying Rule 68 retroactively.

READ: Kenya steps up war to suspend ICC ‘Rule 68’

Elizabeth Evenson, a senior international justice counsel at Human Rights Watch who attended the discussions told The EastAfrican that the Appeals Chamber will need to address whether the trial chamber’s application of the rule was consistent with the Rome Statute as held by the lower court.

“The issue is not about who won or who lost at the ASP, but a thirst for justice for the victims of post-election violence in Kenya and everywhere in the world. During the discussions on Kenya’s requests, there were strong statements from a number of states regarding the importance of protecting the court’s independence,” said Ms Evenson.

Kenya’s two proposals, to stop the ICC from applying Rule 68 on recanted evidence and scrutinise how office of the prosecutor procured witnesses, collapsed at the ASP plenary when only Uganda supported the Kenyan cause while other countries opposed or remained silent.

Initially, the European Union had sought to dilute Kenya’s agenda, with most of the members arguing that Kenya’s proposals were an intrusion to the independence of the ICC by substantively discussing an ongoing case.

Canada, for instance, maintained that it is not the role of the ASP to serve as an appeal body for the ICC and that the prosecutor must be free of political interference, even from the ASP.

George Kegoro, executive director of the International Commission of Jurists-Kenya Chapter, told The EastAfrican that the lobbying by the Kenyan delegation failed because the country adopted a more confrontational approach rather than persuasion.

Now, focus is whether Kenya will make good of her threat to withdraw from the Rome Statute. Ruling Jubilee MPs led by the majority leader Aden Duale, threatened the assembly that failure to vote in favour would see Kenya lead other African signatories to the Rome Statute to withdraw from the Rome Statute en masse.

So far, only Namibia has given strong intention of withdrawing from the Rome Statute after the Cabinet approved the recommendation by the ruling party — South West Africa People’s Organisation (Swapo) to withdraw from ICC.

South Africa’s ruling ANC has also recommended that the country withdraws from ICC after the country faced intentional criticism for failing to arrest Sudanese President Omar al-Bashir in June during the African Union Heads of State Summit.

Already, Member of Parliament for Bumula Bonny Otsiula, has drafted a supplementary Bill to repeal the International Crimes Act, thus withdrawing the Kenya from the Rome Statute.

The draft “International Crimes (Repeal) Bill 2015, says that “The principal objective of the Bill is to repeal the International Crimes Act, 2008 in its entirety as outlined.”

By seeking to repeal the International Crimes Act, the Jubilee government is being accused of reneging on Kenya’s commitment to international justice, weakening its global obligation to stop impunity.

Legal experts say withdrawing from an international treaty could damage Kenya’s reputation as a country that respects international law and human rights, with the potential of driving away would-be investors.

For instance, former deputy speaker Farah Maalim said the repeal of the Act will affect ongoing investigations into crimes against humanity such as extra-judicial killings by police and the conduct of the Kenya Defence Forces in Somalia.


“However, the case of Sudanese President Omar Al-Bashir shows that a country does not need to be a signatory to the Rome Statute to be subjected to international criminal law,” said Mr Maalim. He gave other examples such as Yugoslavia, Sierra Leone and Democratic Republic of Congo that are not signatories to the Rome Statute, but whose leaders have been indicted by ICC.

Eight years down the line, Kenya is yet to offer any domestic solutions for justice, accountability and reparations for the victims of 2008 post-election violence, where over 1,000 people were killed.

Kenya’s Attorney-General, Prof Githu Muigai sought to allay fears that Kenya is running away from commitment to international criminal justice. Prof Muigai said Kenya remains fully committed to playing its part in enforcing international law generally and international criminal law specifically.

“As evidence, Kenya continues to champion the African Court of Human and Peoples’ Rights to fulfil its mandate on the protection of human rights in the continent,” said Pro Muigai, who declined to say much because he will be required to give legal aice on the Otsiula Bill.

In October 2013, parliament passed a motion seeking Kenya’s withdrawal from the Rome Statute introduced by Majority Leader in parliament Aden Duale, whose reasons included defending Kenyan sovereignty as well as protecting Kenyan citizens.

The Senate also followed suit and passed a similar motion but the government is yet to follow up by initiating the withdrawal process.

Part of the obstacle is Chapter 1(6) of the Kenyan constitution which says that “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” Legal experts argue that withdrawal from the Rome Statute would fundamentally change this section, which requires referendum.

However, a country that has sent a notice of withdrawal from the Rome Statute must wait for one year while still continuing to meets its obligations such as annual contributions and co-operation with the ICC.