WHAT’S THE NEXT STEP?
Kenya is not yet out of the ICC treaty. A number of steps remain before this happens. The Government could in fact proceed to give notice of withdrawal without further action from Parliament since Parliamentary approval is not required for denunciation of this particular treaty. Of course, this would have been awkward for the 2 accused who had already pledged to cooperate fully with the ICC- so they left the dirty work to Parliament.
Even the Treaty Making and Ratification Act (TMRA), which only applies to treaties made after 14 December 2012, would not have required a Parliamentary consent for treaty withdrawal. But if Parliament does pass a law requiring the Executive to withdraw from the treaty, then the Executive is probably bound to do so. I doubt the current Executive branch would protest too much at being ‘forced’ to denounce the ICC treaty. As such, a bill will probably be introduced in Parliament within the next month or two; if it is passed and receives Presidential assent (almost a given since the incumbent is an ICC accused), then the formal withdrawal process begins. When the law becomes effective, Kenya’s Permanent Representative to the UN (or another diplomat) will give notice of withdrawal to the UN Secretary General; the withdrawal will come into effect 12 months after Ban Ki Moon receives notice.
Parliament will also have to amend the International Crimes Act which specifically incorporates the ICC Statute into Kenyan law. Ironically, they will have to leave sections of that Act which deal with cooperation with the ICC to avoid embarrassing the accused who’ve stated their willingness to cooperate.
IF A BILL TO WITHDRAW KENYA IS PASSED, CAN IT BE CHALLENGED?
If public participation is absent in passing this vital law on withdrawal, then it could potentially be challenged in the courts. One of the principles that the drafters of the 2010 Constitution cared deeply about was that the public should have the opportunity to participate in the process of deciding Kenya’s international obligations (in treaty-making, for example). It’s not clear whether Parliament would really want genuine public participation- despite the court’s waning popularity in opinion polls, things may not go to script if Kenyans are actually allowed to say what they think about the ICC. In addition there is a clear conflict of interest in the way Parliament is going about the process. The political class, after all, are the most likely ones to bear greatest responsibility in any ICC case. Nearly half of the current ICC suspects/defendants are Politicians, Ministers or Soldier-Politicians like President Omar Al-Bashir (an Army General who took power by coup d’etat) and Jean-Pierre Bemba (former DRC Vice-President and Rebel Leader). So the political class are self-interested- unsurprisingly- in not subjecting this to a popular process.
COULD KENYA RETURN TO THE ICC AFTER A WITHDRAWAL?
If the nation does eventually withdraw from the ICC, it might be difficult for Kenya to rejoin if there were a change of heart. This is because in addition to Parliamentary approval by the relevant house, the TMRA now requires that a treaty that alters Kenya’s sovereignty be put to a referendum before ratification. There is a strong argument that a treaty like the ICC that compels Kenya to surrender its citizens to the court in the Hague when the court so orders (e.g. through an arrest warrant) ‘alters’ the constitutional sovereignty of the people. Indeed it is difficult to think of any international agreement in which a state does not in some subtle way voluntarily give up a part of its sovereignty (in the sense that it can no longer act against the letter and spirit of the treaty it ratifies). And it doesn’t help that neither the Constitution nor the TMRA define the word ‘sovereignty’. If a referendum must be held, it’s unlikely that any politician (at least amongst the current grubby lot) would be willing to expend time, energy and public funds campaigning for something like the ICC, especially after the Uhuruto saga.
DOES A WITHDRAWAL IMMUNISE KENYAN POLITICIANS FROM THE ICC?
No. If crimes against humanity, war crimes or genocide were to occur in Kenya (God forbid), the UN Security Council could still refer such a situation to the ICC. Furthermore, it is open to a future government less hostile to the ICC to lodge a declaration recognising the jurisdiction of the ICC for a particular period of time despite Kenya no longer being a party (Article 12(3) of the Rome Statute). This happened in Cote D’Ivoire, which, despite not ratifying the Rome Statute, recognised the jurisdiction of the ICC over crimes committed in Cote D’Ivoire since 2002. It was on this basis that the Prosecutor was authorised to investigate and charge ex-President Laurent Gbagbo and his wife for crimes allegedly committed during the Post-Election Violence of 2010. Interestingly, the Cote d’Ivoire government does not feel ‘humiliated’ by a former head of state appearing at the ICC. In fact, in order to remove any doubt, the Government of Cote d’Ivoire renewed their acceptance of jurisdiction shortly after Alassane Outtara took office 3 years ago.
But what is clear is that once Kenya is outside the treaty, any future ICC legal process would have to start through a political act (either a Security Council Resolution or a sitting government recognising temporary ICC jurisdiction). And that is exactly the way the MPs- who were uncomfortable with foreign judges immune to their pressure deciding matters- want it to stay. Bear in mind that whenever a constitutional body has threatened the perks, privileges and immunities of MPs, they have responded with threats to abolish the offending institution through legal amendment. Such was the fate of the previous Anti-Corruption body under the 10th Parliament; both the Senate and the Salaries and Remuneration Commission faced the same bullying with the current National Assembly.
AS IT STANDS, WHAT IS THE NET EFFECT OF THE MOTION PASSED TODAY?
None whatsoever except to make MPs who voted for it shabbier than their predecessors in the 10th Parliament and to lower the standing of Kenya as a path-breaker in cracking the armour of impunity.
For the avoidance of doubt, I’ll quote the Rome Statute:
Article 127(2): “A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” (emphasis added)