Earlier in the year while attending his pretrial hearing the Deputy President, William Ruto, stated, “the new Kenyan administration … will cooperate with the court, because President Kenyatta and myself believe in the rule of law.” The President, Uhuru Kenyatta, has also made similar promises to cooperate with the ICC. There is also Memorandum of Understanding (MOU) signed between the Kenya and the Court in 2010.
However a few days to the start of the Deputy President’s trial at the International Criminal Court (ICC), the National Assembly has approved a motion to begin Kenya’s pull out from the Rome Statute. Many would argue that the motion brought by the Leader of the Majority, Aden Duale, was inevitable considering that both this and the previous administration have spent considerable time and state resources to get the trial stopped, postpone or get them moved.
If Kenya successfully pulls out of the Rome Statue, along with being the first country to have ICC indictees elected to office, it will become the first country to pull out of the ICC. However even if Kenya withdraws from the Rome Statute the cases against President and Deputy President will proceed as scheduled (the Deputy President’s trial will begin in later this month and the President’s trial will begin in November). Under article 127 of the Rome Statute, withdrawal from the treaty would not suspend judicial proceedings that began before the date of withdrawal.
Further under international law Kenya would still be required to cooperate with the ICC on obligations that arose while Kenya was still party to the Rome Statute. However from the emergency parliamentary session held on Thursday last week it is clear that the State has little or no intention of cooperating with ICC in the ongoing trials after it pulls out from the Rome Statute. The original motion contained the phrase stating that Kenya would “suspend any links, co-operation and assistance” with/to the ICC, the phrase as was later deleted from the motion.
Now that the motion to withdraw from the ICC has been passed by the National Assembly, the relevant government offices are probably in the process of drafting a bill to facilitate Kenya’s withdrawal from the Rome Statute. The bill will be debated in parliament and if passed, the bill will be forwarded to the President for his assent.
It will be interesting to see whether or not the President will assent to a bill to withdraw from the Rome Statute given the conflict of interest issues, previous promises to cooperate with the court and the fact a bill to withdraw would not stop on going proceedings at the Hague.