Why Jubilee is eager to repeal International Crimes Act

The recent resolution by the governing Jubilee coalition to repeal the International Crimes Act, the statute that provides a domestic anchor for the International Criminal Court in Kenya, reflects the uncertain times the country’s politics is going through.

This is not the first time that forces opposed to the trial of the Kenyan cases before the Hague court have taken the far-reaching step of pulling Kenya out of ICC membership.

While none of the previous threats materialised, it is likely that in the coming days, the Jubilee coalition will seek to carry out this latest threat.

Here is why. As long as the case against President Kenyatta was in court, any hostile legislative action by Kenya would have undermined the country’s claims that it was co-operating with the court, an issue that remained central to the Kenyatta case, and played a role in its eventual termination.

With the case now ended, Kenya does not have to be nice to the court, or to the international community.

Jubilee is taking early steps to be assertive. There is a belief that this kind of hostile domestic action corrects international relations that the Kenyatta trial had distorted.

At one level, therefore, repealing the Act is an act of backlash against international arrangements that dared to imperil Kenya’s top leadership through a criminal trial.

The resolution by Jubilee is a statement that never again shall the country’s leadership be put through what the President faced before the ICC.

Continuation of the trial against Deputy President William Ruto, while that against Kenyatta has been terminated, generates internal pressure in Jubilee and partly explains the resolution.

The Jubilee coalition is covering itself against the possibility of eventual accusations that, as compared with what was done for Kenyatta, insufficient effort was put into the Ruto defence.

This would be particularly important if Ruto’s case ended in a conviction.

MOTIVATED BY UNCERTAINTIES

At another level, the resolution to repeal the Act is motivated by uncertainties that are inherent in the manner in which the Kenyatta case ended.

The case against the President was terminated on terms that allow its future revival, if additional evidence should surface.

While it may be argued that the ICC no longer retains the appetite to prosecute Kenyatta, even if new evidence emerged, why would he want to take chances?

A repeal of the Act sends the message that Kenya has broken relations with the ICC and will not be available for a future engagement should the court find this necessary.

Also, there is great pressure from people around Mr Kenyatta. While the President may himself be safe from the possibility of a future trial, people around him feel that without his protection, they could be vulnerable in the event that the ICC revisited the prosecution of Naivasha and Nakuru violence — on which the Kenyatta case was founded.

They feel that the court can still go against them while sparing Kenyatta. In fact, some of the people mentioned in the prosecutor’s pre-trial brief have publicly appealed to the President for protection.

Repealing the Act constitutes the protection that these people crave. If ever the court re-opened investigations on the Naivasha/Nakuru violence, this would generate anxiety within Jubilee, comparable only to the uncertainties generated by the Kenyatta case. Repealing the Act is a way of undercutting such a possibility and keeping the coalition stable.

Jubilee has gone out of its way to draw the opposition Cord coalition into the ICC issue, a matter on which the latter has maintained studious silence.

DRAW IN RAILA

Unusually, a statement by the President’s lawyer, Steven Kay, responding to the pre-trial brief, went out of its way to draw in Cord leader Raila Odinga, declaring that biased investigations by the National Commission on Human Rights were responsible for his exoneration.

While this reaction probably shows how much the President’s side was stung by the content of the prosecutor’s brief, why would his team draw in Raila’s name, when this does not concern their case?

The answer must be that this was an attempt by the President’s team to characterise the prosecutor’s brief as baseless mudslinging, and something not to be believed.

The chosen way of doing so was through their own dredging up, as if to say, “If our client is bad, so is Raila and many others.”

Secondly, sucking in Raila raises the political cost of re-opening investigations into the Naivasha/Nakuru violence.

The President’s corner was saying, in effect, that re-opening those investigations would be unfair unless all other investigations were also re-opened, and specifically on Raila.

There has also been the curious appeal by a section of the Jubilee leadership that Raila, now termed “an international and national leader”, should stand with Ruto and support ongoing efforts to bring “the Hague fiasco” to an end.

In its hour of need, the Jubilee Government, which only ever harshly disparages Raila, is not ruling out the possibility of pandering to him, if that will be required to defend Ruto.

This can also be interpreted as laying the ground for blaming Raila if Ruto is eventually convicted. The argument would be that Raila, whose credibility would have made a telling contribution to the Ruto defence, failed the Deputy President in his moment of need.

After seven years of ICC engagement in Kenya, and despite the termination of the Kenyatta trial, little is resolved and nothing is certain.

The many balls still in the air remain a potent threat to Jubilee’s power. While it can, Jubilee will attempt to reduce these threats. Repealing the International Crimes Act is one such attempt.

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