Kenya’s Motion To Quit the ICC is Legally Retrogressive

By Joseph Kaifala

Published on September 17, 2013

The Kenyan parliament’s approval of a motion to withdraw from the Rome Statute, which established the International Criminal Court (ICC), is a major defeat not only for Kenyans, but also for Africa and Kenya as the African regional seat of the United Nations. The motion resolved “to introduce a Bill within the next thirty days to repeal the International Crimes Act (No 16 of 2008) and that the Government urgently undertakes measures to immediately withdraw from the Rome Statute of the International Criminal Court. The recent undertaken is the zenith of a series of actions undertaken by the Kenyan government to undermine the ICC since the court charged President Uhuru Kenyatta and Deputy President William Ruto with crimes against humanity following the 2007 post-election violence that left more than 1000 people dead and an estimated 600,000 displaced.

The motion is a defeat for Kenyans because it is attempting to remove the important safeguard that international law provides to national legal systems. The ICC was established as a court of last resort, which means it must give deference to national criminal jurisdiction. The court does not have jurisdiction where a state is willing or able genuinely to investigate or prosecute genocide, war crimes, crimes against humanity, or the crime of aggression. In this regard, the court is merely a backup for the sometimes inadequate protection provided by national criminal jurisdictions following mass crimes.

South Africa, for instance, in order to safeguard against the travesty of apartheid-type justice added to its 1991 Constitution that when interpreting the Bill of Right, courts must consider international law and may consider foreign law. Complementarity between national law and international law helps avert excuses of limitations of national legal systems to protect civilians from grave violations.

Moreover, Kenya’s attempt to withdraw from the Rome Statute undermines its standing as one of the few respected African countries in terms of law and order on the continent. In addition to the substantive effects of international law is the moral and international credibility it garners for a country. One of the most fundamental problems facing Africa is a failure of law and leadership, and membership to international legal instruments such as the Rome Statute shows national commitment to the rule of law and judicial transparency. Conversely, secession from such respectable treaty as the Rome Statute signals a shameful legal retrogression for a progressive country such as Kenya.

Symbolically, with Nairobi as the African regional headquarter of the United Nations, Kenya represents some hope for international order on the African continent. Therefore, the country’s motion to withdraw from the Rome Statute is a deliberate insult to a major international symbol of justice. In my view, the motion does not represent defiance against The Hague as expressed in some quarters; it is an act of cowardice in the face of demands for truth and justice for the victims of the 2007 post-election violence.

There is one more parliamentary leap before full withdrawal. Kenyans should rally with the opposition Coalition for Reforms and Democracy (CORD) to prevent their country’s withdrawal from the court. As explained in a statement by the CORD, withdrawal from the Rome Statute will be inconsistent with and defeat the purposes and objectives of the Constitution of Kenya and will not bring honor to the nation and dignity to our leaders.

This is an era in which most Africans seek to advance the rule of law and to ensure that national governance is in conformity with international law and order. Such conformity will ensure protection for the people when their national legal instruments fail to protect them as in the case of the victims of the 2007 Kenyan post-election violence.

The Author

Joseph Kaifala is founder of the Jeneba Project Inc. and co-founder of the Sierra Leone Memory Project. He was born in Sierra Leone and spent his early childhood in Liberia and Guinea. He later moved to Norway where he studied for the International Baccalaureate (IB) at the Red Cross Nordic United World College before enrolling at Skidmore College in upstate New York. Joseph was an International Affairs & French Major, with a minor in Law & Society.

He holds a Master’s degree in International Relations from the Maxwell School at Syracuse University, a Diploma in Intercultural Encounters from the Helsinki Summer School, and a Certificate in Professional French administered by the French Chamber of Commerce.

Joseph was an Applied Human Rights Fellow at Vermont Law School, where he completed his JD and Certificate in International & Comparative Law. He is recipient of the Vermont Law School (SBA) Student Pro Bono Award, Skidmore College Palamountain Prose Award and Skidmore College Thoroughbred Award.

Joseph was a 2013 American Society of International Law Helton fellow. He served as Justice of the Arthur Chapter (Vermont Law School) of Phi Alpha Delta Law Fraternity International. He is a member of the Washington DC Bar.

Article picture: ICC building. Picture by Vincent van Zeijst. Source: Wikipedia