Kenya must stay in and reform the ICC

On April 16, 2016 during the ICC “prayer rally” at Afraha Stadium in Nakuru, President Uhuru Kenyatta vowed that Kenya should never take up the International Criminal Court process in the future.

In last week’s article I explained that the President’s promise could be understood from two different perspectives.

First, an undertaking to deal decisively and fairly with all the cases touching on international crimes.

Second, that we would not wish any other Kenyan to go through the same process, for “we have our own courts; we will sort out our own issues.”

There is a twist to the President’s promise that chills the spine. By saying that Kenya will never again submit to the International Criminal Court, we are effectively implying that our Judiciary will be willing and able to deal with international crimes.

Now, the President is certainly not advocating impunity, so the Judiciary must be a working organ. But for the Judiciary to work it must be kept out of politics.

The Chief Justice is retiring in two months’ time. His successor needs to be beyond moral reproach, for after all, being a person of high moral character is a constitutional requirement.

DOUBTFUL WITNESSES

The ICC, whether effective or not, is a warning sign against would-be perpetrators of the crimes under its jurisdiction. Such warning signs have saved lives in the past, and they will do so in the future.

No one can deny that the ICC has serious design flops. It is a judicial organ with heavy political components.

The ICC is vulnerable to internal and external influences because, after all, it operates in a world where power matters.

The Security Council, a political organ, has the power to refer situations to the Court for investigation and for prosecution, and to defer such investigations for a year. This means that the Court is subject to heavy political interference.

The Office of the Prosecutor, a supposedly neutral and independent office, is housed under the same roof as the judges and registry of the Court.

The Prosecutor’s voice is also perceived to be the same with that of the ICC.

For many nations this in an unacceptable show of partiality and favouritism, given that the same building does not house the defence lawyers.

Its structural challenges spill over to professionalism and competence. How could Luis Moreno Ocampo charge six people, tarnishing their names and compromising the stability and the future of a country, and get not even one conviction?

The prosecution will blame witness tampering and non-cooperation. I am terribly sorry, but that excuse is unacceptable.

The Nazis never cooperated with the Nuremberg tribunal. If Ocampo had done his job he would have indicted more culpable people and/or collected appropriate and incriminating evidence before the window of opportunity closed.

In 2014, I was invited, together with 70 law students, to attend a hearing at the ICC, in The Hague. Back then it was already clear that the prosecution had no case at hand.

They had put together a bunch of witnesses with little supporting technical evidence. They put all their eggs in one basket, a few doubtful witnesses.

FLAGRANT IMPUNITY

The Prosecution lost 6-0, but this dismal performance was not as bad as that of our own prosecutors, who lost 4,000-0 when they declared that none of the 4,000 post-election files they were handling was fit for prosecution.

The sad losers were the victims, who may never be compensated, and the Ocampo Six, whose names were stained, but the saddest loser was justice.

The victims and the country will not forgive liars and false witnesses. Rawson Macharia was bribed by some British officers to testify against Kenyatta in the Kapenguria trials, and educated in the UK, but after returning to Kenya he died a bankrupt man. He was neither forgiven nor forgotten.

Pushing for the withdrawal from the ICC without any serious commitment to rescue the judicial system would be a historic blunder.

We cannot foretell what crop of rulers tomorrow will bring. To quit the ICC now would plunge Kenya into the dark age of the unknown, with the possibility of flagrant impunity without any guarantee of justice. Such a decision is worth serious reconsideration.

The adoption of the Statute of the Court in 1998 was hard won, in the face of brutal opposition to an International Criminal Court that would be independent and fair.

In fact, as the Clinton Administration went on the warpath to destroy the fledgling Court, African states and other like-minded nations held strong.

It is because of this firm commitment that international criminal law and the Court gained traction.

In 2005, Kenya was only one of very few states to resist American inducement to weaken the ICC by signing bilateral immunity agreements shielding American soldiers from the reach of the Court. This commitment to the international rule of law cost us in the region of $9.8 million in aid at the time.

MORAL HIGH GROUND

While we may now have every right to rage against the waste of time and resources on the Kenyan cases at the ICC, perhaps we should reconsider walking away.

It may be more fruitful to marshal the continent and member states to interrogate what ails it. For sure, the court ails.

We must leverage the outcome of the failure of the Kenyan cases to inform dialogue on improving the processes and the operations of the court. Africa will be heard.

As a diplomatic measure, if Kenya took the moral high ground to stay in the ICC and demand that the Court and its organs must be reformed, the gains, both diplomatically and legally, would be priceless.

Better yet, it will cost us almost nothing, except the urge to spite the Court by walking away.

If we walk away from the ICC without first seriously looking into what ails the court and without strengthening our Judiciary, history will declare us guilty.

History will also declare the international community guilty if they do not redress and rethink some of the key principles that were manipulated when the ICC was founded, and which have given a tint of racial bias and political partiality to a court that will only survive if its image is perceived to be fair and just.  

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfrancesch