Kenya looks set to go ahead with fresh attempts to repeal the International Crimes Act, following the publication, last week, of the International Crimes (Repeal) Bill.
The Bill contains just two clauses, the first the formalities about the bill and the second a brief but majestic declaration that “The International Crimes Act is hereby repealed.”
The Memorandum of Objects and Reasons, the official statement that explains the purposes of a bill, is most unusual.
The statement, signed by an MP, Boniface Otsiula, merely declares that the intention of the bill is to repeal the International Crimes Act “in its entirety.”
Even though there is no attempt to explain the purpose of the bill, it has become clear that this bill is the first of two shots that Kenya intends to use in its attempt to force issues in relation to controversies surrounding the application of Rule 68 of the Rules of Evidence and Procedure under the Rome Statute, a matter that has been the subject of some controversy in the trial against Deputy President William Ruto.
Kenya intends to repeal the Rome Statute as a threat that if the Assembly of State Parties does not give Kenya its way with regard to the interpretation of Rule 68, the country will next withdraw its membership of the Rome Statute.
According to this plan, there were indications last week that the Kenya government has already made a decision to commence the process of withdrawing from the ICC, a decision that will be activated if the discussion at the ASP does not resolve, as Kenya wants, that Rule 68 was not intended to apply retrospectively.
It is expected that the National Assembly will discuss and pass the bill this week, ahead of the ASP which also commences this week, and that armed with a decision to repeal the Act, the Kenyan delegation will then threaten that if a decision is not made that Rule 68 does not apply retrospectively, the further plan of withdrawing the country’s membership of the Rome Statute will kick in.
Kenya hopes that other African countries will replicate any decision to pull out of the ICC and that the international community will feel compelled to allow Kenya’s way in order to avert this possibility.
It is clear that Kenya’s plans are driven by the internal politics within Jubilee where the group allied to Ruto feels that it is time the case against him was brought to an end, while the Kenyatta side feels obliged to demonstrate loyalty with the Deputy President by backing these plans.
Of course, there is also a reserve of concern that although the Kenyatta case has now been terminated without prejudice to its reinstatement in future, the case can be brought back in future. Thus, one way of ensuring that Kenya defeats the ICC with finality is to pull out of the Rome Statute while Jubilee has political power.
RESERVE OF CONCERN
There are a number of concerns with the plans to repeal the International Crimes Act.
First, repealing the Act is an insult to victims of the post-election violence, and a statement that neither the ICC nor a local mechanism will ever be allowed to bring justice on their behalf.
Secondly, laws are an insurance against eventualities.
They anticipate and provide for as many situations as possible.
Repealing the International Crimes Act is a statement that Parliament does not care for the country, so long as the personal interests of the Jubilee leaders are secured.
Third, repealing the Act will not affect the Ruto case whose trial is already advanced.
Whether or not the country repeals the International Crimes Act and ends its membership of the Rome Statute, this will not change the legal position that the Deputy President is liable for trial before the ICC.
Fourthly, while the International Crimes Act was meant to define and facilitate the relationship with the ICC by providing for the management of practical matters, the Kenyan state has used the statute as a foil against the court.
WALTER BARAZA' CASE
In the processing of the Walter Baraza arrest warrants, for example, Kenya has employed a sophistic interpretation of the Act so as to keep Baraza safe from arrest by the court.
If the Act is repealed, and without a surrender of Baraza and the others against whom the ICC has issued arrest warrants, there will be no legal mechanism for addressing their fate and these will all become fugitives from the ICC, and a situation that is incapable of closure will ensue.
Finally, while Jubilee has said it intends to rule Kenya for a long time, it will not retain power in perpetuity.
However long it takes, other people will one day take over the country and a situation where current accountability issues can undergo a fresh look may arise.
In such a case, while other methods that Jubilee has employed to defeat accountability could be interpreted equivocally, repealing the Rome Statute would be seen as a rather stark statement that accountability was not possible under Jubilee.
Kenya seems to be banking on the support of other African states for what would be a dramatic spectacle of pulling the continent out of the ICC.
However, it is unlikely that this will happen.
For different reasons, the ICC still has the support of most of its African member states.
While these aggressive international efforts are presented as a different track of engagement from the dire domestic situation facing Kenya, which is characterised by corruption, the international and the domestic are actually related.
They speak of a commitment to impunity as the way of life that Jubilee has chosen for the country.