ICC the greatest threat to ideals of 2010 constitution

Five years after Kenya promulgated its new constitution on August 27, 2010, the Hague-based International Criminal Court (ICC) continues to haunt the country.

Discernibly, the ICC is potentially a greater and more ominous threat to Kenya’s sovereignty, stability and freedom than the horrifying trinity of the Al-Shabaab terrorists, the cattle rustlers of the North Rift and poisonous second generation brews.

In late August, the ICC’s judges made two calls that could potentially have an impact on political risk in Kenya in the run-up to 2017.

First is a ruling by the court’s appeals panel ordering the tribunal’s trial judges to reconsider whether Kenya has cooperated with its attempts to prosecute President Uhuru Kenyatta and other top Kenyan officials for crimes against humanity.

As a member to the Rome Treaty, the Kenyan Government risks being referred to the ICC’s member states or the UN Security Council for action if the court rules it failed to cooperate fully with the ICC investigations.

Second, stakes in the case facing Deputy President William Ruto are now higher in the wake of the decision by the ICC trial judges on August 20 to allow Prosecutor Bensouda to admit recanted statements, including those of witnesses who had refused to testify or are missing.

SOVEREIGNTY

The ICC menace is squarely a failure of leadership by Kenya’s badly split power elite. In a deeper sense, this brings to mind Chinua Achebe’s proverbial foolish man who left his hut burning to chase a rat escaping the flames.

Reduced to a single word, Kenya’s 2010 Constitution is about sovereignty. Period! The architects of Kenya’s new supreme law took to heart the libertarian tradition of Thomas Paine (1737-1809) who asserted in his classic treatise, The Rights of Man, that sovereignty rests solely with “the people” who, like a heavenly God brought to earth, are the unified source of political authority.

Despite the neo-liberal declaration of the “end of sovereignty”, Kenya’s new constitution is philosophically hoisted on Article 1 on the “Sovereignty of the People,” which declares with supreme clarity that: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

This sovereignty may be exercised directly or through democratically elected representatives. It may be delegated to Parliament and the legislative assemblies in the county governments; the national executive and the executive structures in the county governments; and the Judiciary and independent tribunals.

Finally, it may be exercised at the national and county levels. Despite the hyped cosmopolitan notions of “global citizenship”, every Kenyan man and woman stands in a two-fold order of citizenship: A citizen of the county they live in and of the sovereign Republic of Kenya.

ROME TREATY

Kenya’s neo-liberal crowd and human rights fundamentalists have praised the libertarian foundations of the new constitution. But their uncritical defence of the ICC’s frightful forays in Africa has been no more than a strident attack on the sovereignty of the people of Africa. However, their redemptive vision of ICC is hardly new.

On September 21, 2012, during a public event at the American Council on Foreign Relations, the Gambian Prosecutor, Fatou Bensouda, praised the court as having “introduced in contemporary international relations … the new paradigm of international justice”… and “added an independent and permanent justice component to the world’s efforts to achieve peace and security.”

Bensouda was harkening back to the original vision of international justice anchored upon the legal philosophy of equality of nations as the cornerstone of international peace and security that drew 35 African states — including Kenya — to sign the Rome Treaty.

But more water had passed under the bridge than Bensouda admits. The emergence of BRIC powers (Brazil, Russia, India, China) in global leadership at the dawn of the 21st century has seen the return of geopolitics of the Cold War era to haunt international relations.

A new form of geopolitics premised on the primacy of soft power world affairs and still struggling to be born, threatens to dethrone the old geopolitical paradigm of a hard power, West-centric world.

REGIME CHANGE

In the ensuing 21st century scramble for global resources, a beleaguered West has shrewdly turned ICC into one of its tools influencing the future of power in Africa. This marked the end of the age of ICC innocence. It is no longer seen as either a neutral or impartial instrument of international justice or an agent of peace and security.

In May 2013, a month after Kenyatta’s inauguration as Kenya’s fourth President on April 9, Russia’s flagship international news channel, Russia Today, warned in an editorial: “The International Criminal Court is being used as an instrument to carry out regime change with a smokescreen of human rights protection.” The China Daily characterised it as “the nastier manifestation of globalisation.”

In Africa, Ugandan President Yoweri Museveni praised Kenyan voters for rejecting blackmail by the ICC and upholding the sovereignty of Kenya. His Rwandese counterpart, Paul Kagame, dismissed the court as a harbinger of a new form of “multilateral imperialism”, a subtler upgrade from slavery, colonialism and imperialism.

The African Union leaders accused it of “race hunt” pointing to its exclusive focus on Africa. As of August 2015, all the 22 cases before the court focused on African countries, including Uganda, the Democratic Republic of Congo, the Central African Republic, Mali, Sudan (Darfur), Libya, Côte d’Ivoire and Kenya.

Of all the 207 international treaties that Kenya has signed — and now recognised under Article 2(6) of the 2010 Constitution as integral to its laws — the Rome Treaty is the greatest threat to the ideals of Kenya’s new Constitution. Kenya should seriously reconsider its membership to the Treaty.

Prof Kagwanja is chief executive, Africa Policy Institute, [email protected]