On the National Assembly’s Motion to Withdraw from the ICC

Posted by on 9th September 2013

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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.

2 Comments

  • by Aimee on 9th September 2013

    In fact this motion is an exercise in futility. Parliament does not have the power to initiate a withdrawal from an international treaty. According to the Treaty Making and Ratification Act, this is the prerogative of the executive, though under certain circumstances Parliament can block such a decision. In other words, if Parliament can only encourage the executive to withdraw, there shouldn't be a need to pass an Act of Parliament to that effect. If Parliament wanted to repeal the ICA, all they needed to do was pass a bill right away to that effect, not a motion saying that they will bring a bill later to repeal. More at http://justiceinconflict.org/2013/09/06/kenyas-withdrawal-from-the-icc-an-act-in-vain/#more-4797

  • by Nahshon Moturi on 15th September 2013

    Our parliamentarians are Not serious on the problems of their citizens(e.g. the recent killings in Transmara District), but rather much more serious on how much millions each will acquire within this short term. Soon the then a Mr. Duale would be longing for ICC. Just wait. None of us all needs ICC but our poor governance, corruption and impunity compels.