Questions Over Kenya's ICC Commitment

One doesn’t have to look very hard to see why Kenyans have doubts about whether the International Criminal Court, ICC, is ever going to be able to prosecute the orchestrators of post-election violence that swept their country at the end of 2007.

“Tell [ICC prosecutor Luis] Moreno-Ocampo that he should not listen to the words of high-ranking people in the government, because they will only cheat him,” implores one woman from Naivasha in the east of the country, who was brutally raped as she tried to flee the violence.

Nearby, another woman, whose husband was murdered and dismembered by a mob, says the same thing.

One might have expected Nairobi to refrain from any action that might upset the ICC or cast doubt on its commitment to assist the court’s investigation of the violence.

But last week, to international alarm, Sudanese president Omar al-Bashir, for whom the ICC has issued an arrest warrant on charges of genocide and war crimes in the western Darfur region, turned up in the Kenyan capital to attend the signing of a new national constitution.

For Bashir, it was a public relations coup. Back home in Sudan, state media crowed that his Kenyan trip, close on the heels of a visit to Chad, showed that there were limits to the ICC’s influence over its member states.

In Kenya, the ill-conceived visit has simply reinforced fears that the government does not respect the jurisdiction of the international court and could frustrate attempts to investigate the 2007 violence.

Moreno-Ocampo formally opened an investigation in May and promised it would be concluded before the end of this year.

Although details of the investigation are a closely-guarded secret, there has been widespread speculation that the ICC is preparing to go after individuals in government for their allegedly part in the bloodshed.

This helps explain why many Kenyans doubt their government is wholeheartedly committed to the investigation – fears that have only been compounded by news of Bashir’s visit.

As a signatory of the Rome Statute, the ICC’s founding treaty, Kenya was under a clear obligation to arrest Bashir if he set foot in the country.

However, the African Union, AU, has argued that the ICC’s arrest warrant is counter-productive given the quest for peace in Darfur, and has called on its members not to enforce the warrant.

Ahead of Bashir’s visit, the details were kept secret. His name did not feature on the Kenyan foreign ministry’s list of dignitaries invited to the constitution signing. It had been assumed that Salva Kiir, the first vice-president of Sudan and head of the South Sudan regional government, would attend.

Bashir's visit is a slap in the face not only for the international rule of law, but also for Kenyans who have been crying out for a new constitution for so long.

More than two thirds of Kenyans approved the new constitution in a referendum held on August 4.

It replaces a document drawn up in 1963, when the country gained independence from British rule. Its main aims are to devolve power to the regions and to create clearer divisions between the executive and legislature.

The new constitution also states that Kenya must comply with general international law as well as the international treaties and statutes the country ratifies.

Bashir’s visit could thus be interpreted as the first violation of the new constitution.

The visit represents the second time in as many months that the Sudanese president has travelled to an ICC member state in defiance of the arrest warrant.

In July, he flew to Chad to hold talks with President Idriss Deby, signalling a thaw in the troubled relationship between the two neighbours.

Since being indicted, Bashir has also visited Egypt and Qatar, but neither of these countries is a signatory to the Rome Statute.

He has avoided other countries – notably South Africa and Uganda – for fear that he would be arrested there.

The decision by Kenya and Chad to invite him and not seek his arrest is the latest development in a tug-of-war between the ICC and the AU.

For the Sudanese leader, they are a triumph and provide an opportunity to highlight cracks in the unity of ICC signatory states.

As for the victims of atrocities who deserve to see justice done, and the Kenyan citizens who have rallied behind the new constitution, they are a bitter insult.

Geoffrey Nyamboga is an IWPR staff member in The Hague.

The views expressed in the article are not necessarily the views of IWPR.