ICC: Kenya’s is a lose-lose strategy

In the long view, neither effort matters: Not ambassador Macharia Kamau’s insipid and inept letter to the UN Security Council nor ambassador Monica Juma’s dogged, more professional and ultimately successful effort to get the ICC issue on the AU Summit agenda in the first place and eventually to secure a near unanimous resolution against the ICC.

READ: Kenya asks UN to end Uhuru, Ruto ICC trial

There are many reasons why these efforts do not matter: They cannot get the ICC to terminate the cases against the president and his deputy; they undermine the “we-shall-co-operate-with-the-ICC stance” they have maintained since before the elections and could damage Kenya’s diplomatic standing and complicate relations with not merely Western countries but also African countries like Botswana and South Africa.

Even the most dramatic scenario would not matter: An AU-inspired walkout from the ICC by the 34 African state parties — implicit in the Union’s most recent resolution — would only damage the future of the ICC, not its ability to complete the cases it is currently hearing.

READ: Kenya pulls out all the stops to have ICC cases dropped

Let’s take a closer look at each of these busy efforts to see why they are so unproductive: Start off with Macharia Kamau’s letter to the UN Security Council a few weeks ago asking the Council to terminate the two ICC cases.

Bereft of the usual diplomatic niceties, this salad-bowl of bad arguments, anti-ICC calumnies and national self-congratulation was so bizarre many initially thought it to be a forgery. Why did the ambassador think that the Security Council should stop the cases?

Ostensibly because the ICC is a failure; the prosecution witnesses have been coached and are unreliable; the ICC is itself illegitimate; the recent election shows that Kenyans have overwhelmingly rejected the cases against the president and his deputy and, crucially, the cases are a threat to regional peace and security.

The infelicities of language aside, the idea that the Security Council could terminate ICC cases on the say-so of the ambassador is embarrassing. Though the Security Council has powers under Chapter VII of the UN Charter to tackle threats to international peace, the Council cannot act on the contents of this letter. It would take substantive evidence to convince the Security Council that the cases from Kenya are a threat to peace within the meaning of the UN Charter.

More important, even if the ambassador had laid some evidence before the Security Council, his arguments make no sense. Consider. That the witnesses have been coached and unreliable is an evidential question for the relevant ICC Trial Chamber, not an issue for the Council.

Whether the ICC is legitimate depends on the respect and commitment it enjoys from the 122 state parties to the Rome Statute. As for the call to terminate the two cases, the wide powers the Security Council has under Chapter VII of the Charter do not include supervision of the ICC’s judicial power.

Of course, the Council may, under article 16 of the Rome Statute, defer a case for 12 months if it’s a threat to international peace.

And even though this deferral can be extended if a state party applies again, deferrals cannot be perpetual and certainly don’t imply any power to terminate. As for the results of the recent presidential election, votes do not answer criminal indictments unless they are jury ballots. In short, Mr Macharia’s potpourri of issues is inept and misdirected: He is asking the Council to consider questions it never could and seeking remedies it has no power to give.

In the end, we are on shifting sand: What is the gravamen of ambassador Macharia’s case? Is it the electoral legitimacy of President Uhuru Kenyatta and Deputy President William Ruto; the weakness of the two cases and the bogus witnesses against them or the threat that the cases pose to regional peace?

But consider the ambassador’s arguments against the legal point that President Kenyatta and his deputy have consistently made, namely, that the evidence against them is worthless. If so — the former Yugoslavia prosecutor at the ICC, Nick Kaufmann thinks it is so — why bother with expensive charter jets and other lobby efforts to stop cases so congenitally defective that they must fail? Where is the public interest?

What could better vindicate the president and his deputy, embarrass the ICC and humiliate its chief prosecutor to boot than the dramatic collapse of the cases at trial?

Which brings us to the real issue: These frantic efforts do not help the president and his deputy or the country. Long before the elections, they said that they would co-operate with the ICC if elected. Asked if the burdens of an arduous trial coupled with the rigours of office would not sap their performance, they were emphatic: The heavy schedules were no object. The latest oscillation between co-operation and rejection suggests that something has changed. What though?

Cynics think that the ambassador was floating a balloon, principally to test if diplomatic opinion would countenance a decision not to co-operate with the ICC. Hopefully, this is not so. Nothing would hamper the mobility of the president and his deputy and damage Kenya’s standing as a law-abiding state globally than a decision not to co-operate with the Court.

At a personal level, article 27 of the Rome Statute makes it clear that it applies “equally to all persons without any distinction based on official capacity.”

This means that President Kenyatta and William Ruto’s official capacity as head and deputy head of state do not, in the words of the article, “exempt [them] from criminal responsibility.” In fact, “immunities … which may attach to the official capacity of a person” whether these are in national or international law “shall not bar the Court from exercising its jurisdiction over such a person.”

If one thinks, as President Kenyatta and Deputy President Ruto clearly do, that the case against them is weak and unprovable, co-operation is both good political optics and smart legal strategy. Which is why it would be foolhardly to take seriously President Yoweri Museveni’s “inside information” that President Kenyatta risks arrest if he travels to The Hague. The truth is the other way: Failing to turn up would trigger the very risk President Museveni claims that President Uhuru would be running by travelling to the Netherlands.

President Museveni’s comment brings us neatly to the AU’s position on the Kenya cases. Though the ICC issue got onto the agenda only two days before the Summit — thanks to back channels efforts and corridor diplomacy by ambassador Monica Juma — it spurred the Summit to a near unanimous resolution on the ICC. The resolution opens with “unflinching commitment” to fight impunity and promote democracy.

Though an earlier draft had included all the arguments in ambassador Kamau’s letter, the final decision is a terse attack on ICC and includes, not only the Kenya cases but also that of President Omar al-Bashir of Sudan.

Drawing from the AU’s Final Decision and the Summit proceedings, one can summarise the AU stand, which echoes the now familiar one in the Kenyan press: The ICC is a tool of Western powers that targets and discriminates against the continent; undermines African efforts to solve its problems, especially finding peace and reconciliation in post-conflict situations; and is shot through with double-standards, focusing its firepower only on African countries such as Sudan, Kenya and Libya but not on Iraq or the Gaza.

With reference to Kenya, the AU thinks that the two cases can be tried locally given Kenya’s newly minted Constitution, ongoing judicial reforms and the legitimacy the judiciary now enjoys, courtesy of its Solomonic judgment in the recent presidential petition.

What are we to make of these arguments? My friend Jack Muriuki has shared his diligent work on the ICC for use in this article and it amply demolishes the AU’s anti-ICC claims.

Let us start with the argument that the ICC is a tool of Western powers. Muriuki mines the ICC archives and notes that the Rome Statute came into existence, in no small measure, because of strong and enthusiastic support from Africa. South Africa, Senegal, Lesotho, Malawi and Tanzania were among the pioneer states in the formative discussions to create the ICC as far back as 1993.

Senegal was the first country in the world to ratify the Rome Statute on February 2, 1999. The Democratic Republic of Congo brought the treaty into force by becoming the 60th state to ratify it on April 11, 2002. Kenya, now at the forefront of attacking it, joined on March 15, 2005. The African governments’ passion for an International Criminal Court matched that of African NGOs.

More than 800 African civil society organisations participated in the drafting of the Statute, making up nearly a third of the global CSOs involved in that effort.

Of the 122 states parties to the Rome Statute, 34 are from Africa, 18 from Asia-Pacific, another 18 from Eastern Europe, 27 from Latin American and the Caribbean, and 25 from Western Europe and the rest of the world. In short, Africa makes up the largest regional bloc with one in every four parties being an African country.

Could it be that having helped write the Rome Statute, Africa then lost out to the West in the establishment of and influence at the Court?

Muriuki also shows that contrary to the rhetoric of helpless victim-hood with which anti-ICC African presidents speak of the Court; Africa is well represented in numbers and influence at the ICC.

Five out of the ICC’s 24 currently active judges — or one in every five — are African: Fatoumata D. Diarra from Mali; Akua Kuenyehia from Ghana; Chile Eboe-Osuji from Nigeria; Kenya’s own Joyce Aluoch and Sanji M. Monageng from Botswana. Moreover, Africans are in positions of real influence: the Prosecutor is Fatou Bensouda from the Gambia, the Court’s First Vice President is Judge Sanji Mmasenono Monageng from Botswana and the Deputy Registrar is Didier Preira, a Senegalese. If Africans feel hard done by in the ICC, it canot be because the European contingent at the ICC has taken all the plum positions.

It turns out, then, that Africans helped write the law and are well represented in the ICC. What then is the AU grievance based on? Maybe it is the cases before the ICC? It turns out that it is not even that.

True, all the eight referrals — which give rise to 18 cases and investigations in total — now before the ICC come from Africa: DR Congo, Central African Republic, Uganda, Sudan, Kenya, Libya, Cote d’Ivoire and Mali — it is crucial to see how they got before the court.

Well, four of these referrals — making 50 per cent of the total referrals and accounting for 12 of the cases — were actually made by African countries themselves —DR Congo, the Central African Republic, Uganda and Mali. Only two situations — Libya and Sudan — which account for six or 30 per cent of the cases — were referred to the ICC by the UN Security Council. Ironically, it is President Museveni himself — now the ICC’s most vociferous critic — not some imperialist, who referred the Joseph Kony case to the Court.

Kenya and Cote d’Ivoire are interesting, the one because it is, indirectly, the African Union’s own referral and the other because it was a voluntary submission to the court.

Let’s begin with the Kenya case. On reflection, the cases were, in a roundabout way, referred to the ICC by the very AU now fronting the angry fight against the Court.

The referral came from the Panel of Eminent African Personalities — with Kofi Annan as chair and Benjamin Mkapa, former president of Tanzania and Graca Machel, former South African first lady as members.

The Panel had an AU mandate to broker peace and forge a framework for peace and reconciliation in Kenya in the wake of the 2008 post-election violence. They were the ones who referred the Kenya case to the ICC when it became clear that there was official reluctance to deal with crimes detailed in the final report of the Waki Commission of Inquiry.

Twice, parliament snubbed the opportunity to fashion a local solution by voting down Bills creating a local tribunal. The catchy mantra then was: “Don’t be vague, go for The Hague.” If there is now a sudden vagueness about The Hague, it is certainly not because America or Britain took us there in the first place.

Now consider Cote d’Ivoire. Though Côte d’Ivoire is not party to the Rome Statute, it has thrice voluntarily accepted the jurisdiction of the ICC.

It first accepted jurisdiction on April 18, 2003 and again on December 14, 2010 and May 3, 2011 when the president of Côte d’Ivoire reconfirmed the country’s acceptance of this jurisdiction.

On that acceptance, the Pre-Trial Chamber III granted the Prosecutor authority on October 3, 2011 to open investigations into the situation in Côte d’Ivoire. In fact, the case against Laurent Gbagbo started formally after he was transferred to the ICC detention centre at The Hague by the Ivorian authorities themselves.

Which raises the question: Where are the insidious imperialists who are targeting African leaders and shipping them out to The Hague?

So much for the ICC as an imperialist tool. What of the argument that it undermines reconciliation?

The AU itself accepts that impunity threatens peace but neither the Kenya government nor the AU has said anything about justice for the 1,133 children, women and men who were killed; the many more who were maimed and the displaced who have never been settled.

It is therefore difficult to see how ICC hurts reconciliation in Kenya. In the diplomatic kerfuffle over the ICC, it has been forgotten why international trials became necessary in the first place. The Commission of Inquiry into the Post-Election Violence laid out in painful detail the weaknesses that had made it impossible to hold perpetrators accountable “even when strong evidence existed.”

The CIPEV report lamented that of “1,133 deaths, the police have initiated prosecutions for a mere 19 homicides.”

Looking at the antecedents of 2007 — the clashes in 1992 and 1998 — the Commission was aghast at the serial failures of the then Attorney General, Amos Wako.

Evaluating his record over the 1992 and 1998 crimes, CIPEV noted that 37 out of 70 files relating to the 1998 electoral violence had been closed; 9 files were with the DPP having been re-submitted after further investigations; and 24 were still with the police for further investigations. Unimpressed by this performance, the Commission that only a “special tribunal,” not the Attorney General, could enforce accountability for “crimes against humanity relating to the 2007 general election in Kenya.”

There are many who think, with good reason, that it is this history of prosecutorial stutter and dither — as well as policy inertia — that is the real long-term threat to peace and reconciliation in Kenya.

This brings us to the third point: ICC double standards. If we go back to how the eight African referrals at the ICC ended up there, it is hard to see any merit in this charge. Half the referrals were made by African states; one by the AU’s own mediators; another arose from voluntary submission to the Court’s jurisdiction by a state that was not even a party to Rome Statute and the last two referrals were by the Security Council.

If the Court has no referrals from Iraq, Syria, Gaza or other violent and dangerous places, the blame surely lies with the Security Council and the relevant state parties, not with the Court.

The AU’s final argument is that the cases should be brought home.

Maybe. But even though the case for this is rather weak, some ICC judges have urged that this possibility be considered. If the ICC eventually makes this concession, they will almost certainly divide the hearing with certain elements still to be heard out of the country, principally because of witness safety.

But the more general point is that even though judicial reforms have been impressive and a real fillip to Kenya’s political remake, they have not properly taken root. The implementation of the Constitution may even stall.

Consider, for instance, the MPs’ execrable demands for higher pay and Kamlesh Pattni’s legal trickery in the courts. Both cases tell us that we must not be sanguine that changes are irreversible. As for the argument that the Supreme Court has secured its legitimacy with its judgment on the presidential election, the less said the better.

But the fact that some of the glitterati of the legal profession say that only those with years of university teaching and aeons of private practice can discern its profundities suggests there is less there than meets the eye.

Yet bad as the case that the AU makes is, it has been emotionally and powerfully resonant across the continent. It may even energise efforts to create an African Court of Justice and Human Rights with an international criminal law mandate as first mooted by the AU in 2008.

That may, in turn, eventually lead to a mass walkout from the ICC.

Nonetheless, it would, legally speaking, all be a pyrrhic victory. The Kenyan cases would still go on to the ignoble or glorious ends that the contending critics and supporters now prophesy.

And therein lies the puzzle: Why is Kenya expending so much energy and money on a cause in which even if we win, we shall lose?

* Wachira Maina is a constitutional lawyer. This article was first published by The EastAfrican.