Key ICC Members Quiet on Kenya Withdrawal

Western states that have signed up to the International Criminal Court (ICC) have maintained a cautious diplomatic silence after the Kenyan parliament voted to pull out of the court.

The lower house of parliament voted in favour of a motion to withdraw from the ICC’s founding treaty, the Rome Statute, on September 5 after an emergency session held to debate the issue.

Opposition parliamentarians walked out in protest at the motion, which was carried by members of the majority Jubilee coalition.

The motion was also passed in the Senate, the upper house, on September 10. But the proposal will need the president’s backing, rather than just parliament’s, to be taken forward. If that happens, Kenya would become the first country to withdraw from the Rome Statute.

The withdrawal issue was raised just as Kenya’s deputy president, William Ruto, prepared to stand trial at the ICC for crimes against humanity relating to the electoral violence that hit large parts of Kenya following a presidential election in December 2007.

More than 1,100 people were killed and 3,500 injured as the disputed poll result descended into bloodshed across political and ethnic lines.

Ruto’s trial, along with that of his co-defendant, former journalist Joshua Arap Sang, got under way in The Hague on September 10.

President Uhuru Kenyatta is due to stand trial on similar charges in proceedings scheduled to start on November 12.

A withdrawal, if it happened, would take a year to come into effect, and would not affect the ongoing trials.

Kenyatta and Ruto fought on different sides of the conflict in late 2007 and early 2008, but came together under the Jubilee coalition banner to win the March 2013 presidential election.

Since the motion to withdraw from the court was passed by Kenya’s parliament, Canada has been the only state to speak out publicly on the matter.

“[Kenyan] citizens should have the same access to international justice just as… citizens of any other country have. The International Criminal Court is a Kenyans’ court,” Canadian high commissioner, David Angell, was quoted as saying by Kenyan media.

Meanwhile, Tiina Intelmann, the ambassador of the Assembly of States Parties, the 122 countries that have signed up to the Rome Statute, also urged Kenya to remain a member of the court.

“I hope that Kenya will remain within the Rome Statute and thus continue to contribute to the fight against impunity, which is a common endeavour of all states,” she said, speaking in Gulu in northern Uganda on September 9.

European governments, which contribute more than 50 per cent of the ICC’s annual budget, have not spoken publicly about the prospect of a Kenyan withdrawal.

A spokesperson at the British High Commission in Nairobi said the UK did not yet have a position on the proposal.

The French embassy in Nairobi also declined to comment, while representatives of The Netherlands’ in Kenya failed to respond to an email on the matter.

Analysts say this silence is a sign of caution and indicates an effort to avoid drawing attention to the issue or endangering existing and future diplomatic ties with Kenya.

“The ICC topic is a hot one,” said Jared Magwalo, a Kenyan lawyer and expert in international law. “Some of the ‘big brother’ countries have key business and diplomatic interests in Kenya, and even though they want Kenya to remain at the ICC, they have also read the mood and gotten wary of the controversy surrounding the ICC in Kenya.

“They will want to be careful not to be too loud, just in case Kenya takes it against them.”

Back in March, in the run up to the presidential election, Western states issued a series of warnings about the implications of the two ICC suspects being elected.

The United States’ assistant secretary of state for African affairs, Johnnie Carson, warned of “consequences” if voters went for Kenyatta and Ruto.

The UK’s Kenya envoy, Christian Turner, said he would only have “essential contact” with the suspects if they won.

However, rather than discouraging people from voting for the two suspects, the warnings were interpreted by some as Western interference in Kenyan affairs, and were viewed by many as a boost for their election chances.

Given that the suspects are now president and deputy president, analysts warn that Kenya’s Western allies face an even greater dilemma.

“Now that [Kenyatta and Ruto] are in power, it is natural that they [Western states] respect and cooperate with government, and how better to do this than to skate on the thin ice of neutrality by avoiding such talk [about the ICC],” Margaret Ondego, a legal consultant and retired diplomat in Mombasa, told IWPR.

“Wisdom demands that they come out clearly and discourage Kenya from withdrawing from the ICC. But they may not, because they don’t want to be seen to meddle in Kenya’s internal affairs.”

At the same time, Ondego said it was likely that discussions were taking place away from the public eye.

“We know [Western diplomats] could be grumbling behind the scenes in support of the ICC,” she said.

Besides encouraging Kenya to embrace a justice process for the 2007-08 unrest and to remain a member of the ICC, Western states also have to consider their commercial and security interests in the region. Some believe that recent efforts by Kenya’s new leadership to forge business ties with China and other Asian states have made this even more of a priority.

In August, Kenyatta signed a five billion US dollar deal with China – not an ICC member state – to build a railway line from Kenya’s eastern coast to Uganda on its western border. The deal will also see China finance various energy and wildlife protection projects in Kenya.

“This must have worried the West because like them, many of us saw this as a consequence of their blunt support of the ICC in Kenya, and a lack of empathy with Kenya’s leaders facing charges at the ICC,” Magwalo said. “I think they [Western states] have realised this and want to play safe, because they know they need Kenya’s allegiance.”

The ICC has faced broader accusations that it is targeting only African leaders. Ethiopian prime minister Hailemariam Desalegn, for example, has accused the court of “hunting Africans”.

Thirty-four African countries are fully signed-up members of the ICC but, in May, the African Union voted by 53 states to one to ask judges in the Hague to refer the cases back to Kenyan courts.

Some African nations have welcomed Kenya’s bid to withdraw, and there is talk of a similar motion being tabled at the AU, which could apply to all African members of the Rome Statute.

Analysts believe the growing mood of opposition to the ICC both in Kenya and across the African continent is another reason why Western states have been reluctant to make public statements urging Kenya to remain in the Rome Statute.

“The ICC has been thought of by many in Africa as a court that is being used to target Africa and Africans, and not the West, so any non-African country standing up to support the ICC in Kenya is seen as confirming and perpetuating that thought,” Salim Swazuri, a university law lecturer in Nairobi, said. “This also seems a likely factor holding back these Western nations from speaking out now.”

Even so, Kenya receives millions of dollars in aid from other ICC member-states every year. In 2011, aid from The Netherlands was estimated at 150 million euro (200 million US dollars). Germany has pledged 138 million euro (184 dollars) over three years. Some argue that this kind of funding should be reason enough for powerful ICC member states to stand up to Kenya’s leaderships on plans to withdraw from the court.

“These countries have the ability to influence our decisions [and] put us back on the right track,” Swazuri said.

Joseph Akwiri is a freelance reporter in Mombasa.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.