Why Kenya would regret pulling out of ICC

Kenya’s Justice minister Mutula Kilonzo has termed as “dangerous” the push by MPs to force the government to cut links with the International Criminal Court.

“This is the single most dangerous thing, in fact those people who are seeking to withdraw from the Rome Statute are making it so bad (for the suspects). You will regret it for the rest of your life,” the minister warned.

In an interview with the Nation, the minister noted that if Kenya withdrew, then the six suspects fingered by the ICC as being behind the post-election violence in late 2007 and early 2008 will be on their own.

“In fact, as a citizen, you’ll be picked up like chicken. Sudan is not a signatory to the Rome Statute, yet (its President Omar Hassan el) Bashir cannot set foot out of there. The son of (ex-Liberia President Charles) Taylor was arrested in the US and prosecuted for international crimes,” Mr Kilonzo said.

Charles McArthur Emmanuel Taylor, a US citizen, was sentenced to 97 years in prison early last year for “crimes of universally condemned torture” committed while he was the head of Liberia’s anti-terrorist services during his father’s 1997-2003 rule. He was arrested in 2006 in the US.

That, in itself, the minister said, should be warning enough that Kenya is safer under the Rome Statute than “outside it”.

“No country has ever withdrawn from the Rome Statute at all. You’ll be the first. The moment a country withdraws, you’ll be answerable to customary international law whether it’s in your Constitution or not” he added.

The Justice minister warned that the six suspects — Cabinet ministers Uhuru Kenyatta and Henry Kosgey, Head of Civil Service Francis Muthaura, MP William Ruto, journalist Joshua Sang and ex-top cop Hussein Ali — risked being arrested by even pariah states if MPs succeeded in passing the motion and the government initiates the withdrawal.

Mr Kilonzo added: “You can be arrested by Somalia. Without warrant, without safeguards, no judge (Kalpana) Rawal to take statements... hii kitu hatari! (this is very dangerous!)”

His statement came ahead of debate on a motion filed by Mr Isaac Ruto (Chepalungu, ODM). The motion is addressed to the Minister for Internal Security, Prof George Saitoti, under whose docket the operations of the International Crimes Act (2008) falls.

Mr Kilonzo has vowed to oppose the bid by MPs terming the motion as unconstitutional.

His vow comes against a backdrop of massive push by other lawmakers to have Kenya sever links with the international court. It also comes amidst propositions by the government to write to the ICC at The Hague to defer the cases facing the six.

On Tuesday, there were whispers in the corridors of Parliament that MPs would censure House Speaker Kenneth Marende if he attempted to rule the motion as being out-of-order.

The MPs were banking on the hope that the Speaker would agree with them and give the motion the green light, then amend it to remove the inconsistency with the Constitution.

The government-led House Business Committee, where also the government has the majority of members, had slotted the motion for debate Tuesday afternoon. The government has been keen on shielding the top ministers and key government officers from prosecution.

The Justice minister is of the view that even if Parliament succeeds, the government will still remain obligated to the ICC.

He cited article 127 of the Rome Statute: “… (the) withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

Still, Kenya will have to wait for a full year for the withdrawal to be effected. The right way for MPs to go about the motion, the minister said, was to first repeal the International Crimes Act, which has the Rome Statute as a schedule, and then, for Kenya to write to the secretary general of the UN giving notice to withdraw.

A total of 139 countries are signatories to the ICC, of which 111 have ratified.

“Even the US, refused to ratify, but they signed,” said Mr Kilonzo. “I am sorry, I may look harsh, but that’s the law.”

The minister said the on-going push to shield the ICC suspects was a “combination of politics, money, genuine fear and a lot of ignorance”.

“This is a very complex law. It says you have a right to prosecute your citizens, but the day you fail, the ICC will take over,” Mr Kilonzo added.

The minister said MPs were wrong by saying the new Constitution had improved the country’s ability to deal with its cases.

“The circumstances now are much worse than before, because first of all there’s the process of implementing the new Constitution. Why haven’t we appointed a prosecutor, why is AG Amos Wako still handling criminal cases?” he asked.

Such questions can only be aptly answered by the minister himself, but he says, he’s already made his case. He says he’s not the country’s legal advisor, but that, he does come up with policy on the execution of legal issues in government.

On Tuesday, Deputy Speaker Maalim Mohamed ruled: “The proposed motion is ... contrary to the law...” He made the ruling after MPs, led by Mr Kilonzo last Thursday questioned the motion’s constitutional validity.