It is difficult to know exactly what the government’s position is with regards to the ongoing International Criminal Court’s cases against the President and Deputy President. The constitution is clear on Rome Statute’s position in Kenya’s laws. Article 2(5) of the constitution states “the general rules of international law shall form part of the law of Kenya”: Kenya has also domesticated the Rome Statute in the International Crimes Act of 2008.
So while the law is clear on the Rome Statute and the ICC, the government’s position is not. In fact the government’s position on the ICC cases seems at best mixed. On one hand the government gives the message that Kenya will cooperate with the ICC on the cases and on the other hand it continually mounts legal, logistical and diplomatic challenges to the jurisdiction of the ICC over the Kenya cases.
The government has spent large amounts of time and state resources on shuttle diplomacy continentally and globally to get the cases dropped.
In May the government carried out extensive lobbying activities the with African Union states both before and during the African Union summit. The result, on May 23 the African Union (AU) called for the ICC to drop charges against both the President and his Deputy with members of the AU threatening to pull of Rome Statue if the cases are not dropped. In the same month the government unsuccessfully asked the U.N. Security Council to end International Criminal Court proceedings against the President and Deputy. (Incidentally there is an interesting article on this in the East African “Kenya’s lose-lose strategy even if the African Union has its way”)
While we as Kenyans are not united on whether or not the ICC should prosecute the cases against the President and his Deputy it would be good to have a government position on the same.
Last week Ugunja MP, James Wadayi, asked that the chair person of the National Assembly’s Justice and Legal Affairs Committee clarify the government’s position on ICC cases amongst the issues he asked to be clarified:
- The position of the Government of the Republic of Kenya on its co-operation with the International Criminal Court (ICC) as obligated by the Rome Statute.
- The position of the Government on certain Statements that have been attributed to the Government’s representative to the United Nations calling for the termination of the criminal cases against three Kenyans at the ICC; despite the fact that the United Nations Security Council has no power to compel the ICC to terminate charges
- The position of the Government on the Resolution of the African Union, which called for the referral of the Kenyan cases at the ICC back to Kenya.
- The capacity and preparedness of the Government to investigate and prosecute the three ICC cases if and when they are referred back to Kenya, bearing in mind that there has been no single successful prosecution of cases related to the post-election violence in this country.
- If there is any guarantee that in the event that the cases are referred back to Kenya, the hapless victims of post- election violence stand any chance of getting justice for those heinous crimes.”
It will be interesting to see what the Committee comes back with. In any event we will be watching.