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Masters of Manipulation: How Kenya Plans to Scuttle International Scrutiny of Post-Election Violence

A policy of non-cooperation with the International Criminal Court will deal a devastating blow to international justice if left unopposed.
 
 
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Mwai Kibaki, the current president of Kenya.
Photo Credit: Wikimedia Commons

 
 
 
 

At first glance it may look as if the Kenyan government has employed a bunch of incompetent lawyers. Any first year student of international law would know that the government’s most recent suggestion for “bringing the ICC cases home” by using the African Court of Justice and Human Rights (“the African Court”) to try the so-called  Ocampo Four has absolutely no chance of succeeding. The Court, in its new form as a merger between a human rights court and a forum for solving inter-state disputes, is barely operational, it is seriously underfunded and lacks the necessary capacity and structures to conduct criminal trials. Even if the Kenyans successfully convince the other state parties that the mandate of the regional court should be revised to include criminal cases, it would take many years to make it capable of conducting something that could come close to fair and credible trials.

Furthermore, the  Rome Statute does not offer a basis for transferring ongoing ICC cases to a potentially competing regional criminal court, and the Kenyan government has, so to speak, already used its last bullet trying to find legal leeway to end ICC intervention. Article 19(2) allows a state to challenge admissibility on the grounds that it is conducting its own investigations or prosecutions, but according to article 19(4), the “admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State”. The government already challenged admissibility last year, but this challenge was turned down by Pre-Trial Chamber II, and since by the Appeals Chamber, on the grounds that there remained “a situation of inactivity” in Kenya. While article 19(4) states that “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial”, it is extremely unlikely that the Court would consider using this provision given the government’s rather ambiguous record in the area of accountability – including the failure to prosecute anyone for planning and organizing the post-election violence in a period of more than four years, as well as a series of other factors.

So, if the government’s most recent attempt to challenge the ICC’s jurisdiction is doomed to fail, why then is the Kenyan leadership investing so much energy in it, including placing it on the agenda of a recent African Union legal expert meeting in Addis Ababa, held 7-11 May?

Could it be that the real intention behind the government’s action is to pave the way for non-cooperation with the ICC? In citing a commitment to using the African Court to pursue criminal accountability for the four suspects of Kenya’s 2007/8 post-election violence, the Government is attempting to create yet another argument that can be put forward when justifying why, ultimately, it is not going to arrest and transfer the suspects to The Hague. Though the African Court proposal is highly unconvincing to any observer of international law, distinguishing between good and bad legal arguments is not always easy for the man on the street in Kenya. The Kenyan government has proven to be a master of manipulation.

Segments of the leadership, including President Kibaki and many of his closest allies, have long been convinced that criminal justice will jeopardize the status quo, and hence the privileges of a so far untouchable political-economic elite. Some of the  suspects– Kenyatta, Muthaura and Ruto – serve or have served as high profile members of the current administration and belong to the inner circle of these elites. Consequently, despite formal commitment to accountability, the leadership has never had any intention of seeing criminal trials unfold in Kenya and has consistently attempted to create new barriers for holding members of the country’s ruling class accountable in The Hague.

 
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