As a student of international criminal law, I, the researcher
sought out to find out the place of international criminal law in Kenya with
various questions at the back of my mind. The question as to whether Kenya has
an obligation to prosecute international crimes has been answered by the
realization that all state parties and signatories to the various international
criminal treaties are obliged to do so.
The burning question from the onset has been whether Kenya
has fulfilled her obligations under international criminal law hence the title Kenya's obligations under international criminal law. The researcher was disturbed
by several events in the country that moved him to carry out investigations on
the country’s commitment to this very crucial calling.
The events ranging from crimes against humanity committed by
powerful individuals every election period to the protection of genocide and war
crimes perpetrators and fugitives as alleged by the USA and other states as
well as the menace of terrorism and piracy left a big question mark in the
researchers mind as to whether Kenya is committed to curb these atrocities or
just playing games on her citizens and the international community.
As documented herein in the previous chapters, the researcher
was able to investigate the above allegations from all corners. He remains
baffled by the hypocrisy and betrayal of Kenyan leaders in the period after the
post election violence. As seen in the
literature review, the Kenyan national assembly refused to establish mechanisms
to facilitate the establishment of a local tribunal to prosecute the crimes
committed and in fact majority of the members of parliament advocated for the
referral of the cases to the ICC with the infamous slogan “don’t be vague, go
to The Hague”.
However, hypocrisy is seen immediately the Waki commission
names six individuals as bearing the most responsibility and the country suddenly
turns to tribal cocoons with each tribe represented by the six individuals
saying they are being unfairly persecuted.
There was then a futile attempt to refer the cases back to
Kenya through a series of petitions through the EAC, AU as well as a shuttle
diplomacy that never bore much fruit if any. Recently a petition to the UN Security
Council to intervene and have the cases referred back to Kenya was ignored with
the UN maintaining it has no power to do so. Now the AU member states have
vowed to withdraw from the court if the cases are not referred back. It is now
a continent against the world affair with most African states rallying behind
Kenya on the notion that the ICC is a foreign court targeting only African
leaders and is being used by the powerful western powers to bully and
manipulate Africa leaders.
The two dominant tribes represented by the remaining
individuals facing the cases have since joined hands and managed to influence
sympathy votes from the rest of the country and now are the heads of government.
This clearly shows the reluctance of the leaders to meet the obligations under
ICL as hidden under the leaders’ individualism. The constant claims by the ICC
prosecutor that the government is interfering with her witnesses and failing to
cooperate are a confirmation of the same. With regard to the other crimes,
Kenya has been faced with numerous problems which have been occasioned by her
unwillingness to commit to her obligations under ICL.
Africa is a continent in perpetual turmoil. A cursory review of the
continent of Africa reveals a troubling catalogue of social maladies traceable
to state failure. Some African countries have experienced civil war, military
dictatorships, massive human rights violations, and genocide. Others are
spiraling toward social disorder, roiled incessantly by corruption, weak and ineffective institutions, ethnic
hostilities, and reciprocal tribal hatreds. Kenya is no exception and has faced
serious international crimes in the recent past which have put her commitment
to meeting her obligations under international criminal law to a test.
Kenya has faced serious human rights
violations in the past, notably at the time of electoral processes. Numerous
Kenyan official Commissions' reports1 as well as International Non-Governmental
Organizations' (NGO) and Kenyan NGO’s reports have denounced the politically
instigated ethnic clashes that occurred at the occasion of the 1992 and 1997
presidential elections. Despite State knowledge of such violations, no one was
prosecuted for the massive crimes committed in Kenya. This culture of impunity
is undoubtedly one reason for the recurrence of such human rights violations,
notably those committed at the occasion of the December 2007 presidential
elections. The fight against impunity of the most serious crimes is an
important way of preventing further violations. Along this line, State Parties
to the International Criminal Court (ICC) Statute have announced that they are
“determined to put an end to impunity for the perpetrators of these crimes and
thus to contribute to the prevention of such crimes” (Preamble of the ICC
Statute).
However, even with the reemergence of
constitutional democracy, human rights violations are trending upwards in
Kenya. Elected Kenyan leaders typically use extralegal and often brutal means
to quell internal dissensions from disaffected citizens. Human rights
violations, corruption, and inequitable distribution of the nation's resources
undermine the legitimacy and effectiveness of the central government and often
lead to social disequilibrium. State failures provide volatile, anarchic
environments in which predatory government officials, opportunistic
politicians, and ambitious ethnic chieftains pursue their goals through violent
means.
Before the advent of international
criminal prosecutions, the international community expressed vague disquiet
about atrocities and massive human rights violations in the continent of
Africa. Constrained by concerns
for national sovereignty and politics, the world community never seriously
attempted to check the excesses of tyrannical and despotic leaders that ruled
Africa. An intensely
distracted world community rightfully placed more importance on issues like the
Cold War and nuclear proliferation, leaving hapless African citizens to bear
their fate without international assistance. Hubristic African leaders hid
behind the niceties of national sovereignty and flagrantly abused their
citizens without fear of reprisals from the international community.
Vulnerable, disaffected and oppressed citizens dealt with impunity the best way
they knew: through violence in the form of coups, counter-coups, assassinations
of leaders, ethnic strife, genocide and civil war. Lately, however, African
countries, either on their own, or prodded by the West, have shown an increased capacity and
willingness to promote accountability through the legal process.
It is in this line that Kenya signed
and ratified the Rome statute and eventually submitted herself to the processes
of the court. The relationship between Kenya and the ICC is an international
relationship in the traditional sense. It is rather a devolved relationship.
At
any rate it is a terrible misunderstanding to label the ICC a foreign court; a
western tool of oppression as the chair of the Judicial Service Commission of
Kenya, Ahmednasir Mohamed, declared recently. Upon ratifying the Rome Statute, Kenya imposed upon herself
the inalienable duty to enforce the courts decisions upon her domestic
decisions. We could brand the court mediocre, unfair and irrelevant; a western
tool for manipulation. But really, we freely signed and ratified the Rome
Statute. We imposed this burden upon ourselves willingly, and we have to be men
and women of our word; an honest country. Sovereignty cannot be used as an
argument against the ICC; as a tool to frustrate compliance. This is misguided.
Sovereignty in a modern democratic state refers to autonomy which is subject to
checks and balances.
Back in 1923, the permanent court of international justice
said, “the right to entering international treaties is an attribute of
sovereignty.” In 2008, the Kenyan parliament requested that the ICC should
take charge of the mess created by the post election violence. Consequently in
December 2010, the ICC prosecutor requested the Pre-trial chamber to summon six
people. Members of Parliament lobbied for the government to suspend any links,
cooperation and assistance forthwith. Now there is an ugly diplomatic impasse
and the blame game is on.[1]
The recent conviction of Charles Taylor the former president
of Liberia in The Hague at the international criminal court is indicative of
the changing boundaries of modern criminal law. Gone are the days when only the
local and national laws prevailed, as codified in the penal code. International
criminal law now imposes some obligations on states in regard to certain
crimes.
The rule of law can be summarized as the overbearing umbrella
and values in criminal law which emerges as a cluster of procedural requirements
consistency of laws, general, as distinct to selective application, certain in
effect, clear, and prospective rather than retrospective.
The success of international criminal
prosecution and the ability to achieve the stated objectives of reconciliation
and deterrence ultimately depend on the support and acceptance by the public whose conduct it seeks
to influence. Lack of public support accounts for the disinterest and
dismissive attitude towards the activities of international criminal tribunals
in Africa. Three factors, namely the nature and practice of the tribunals,
location, and contradictions with the African concept of justice, continue to
fuel public disenchantment with international criminal prosecutions in Africa.
February 2009 Summit, the AU Assembly
adopted a decision expressing its ‘deep concern’ regarding the indictment (sic)
of Al Bashir, and mandating the AU Commission to dispatch a high-level
delegation to the UN Security Council to advocate for the deferral of
proceedings under article 16.[2]
Notwithstanding the AU’s decision, on 4 March 2009, ICC judges confirmed the
international arrest warrant for Sudan’s president. On 3 July 2009, at the AU
Summit of Heads of State and Government held in Libya, the Sirte Declaration
was passed (with South Africa’s full support) which resolved that African
states would defy the arrest warrant issued by the ICC for Al Bashir. In
particular, this resolution categorically states that member states have
refused to co-operate in the arrest and surrender of the Sudanese president. It
is believed that the recent discontent with the ICC can be traced to the
suggestion that ‘the ICC is a hegemonic tool of Western powers which is
targeting or discriminating against Africans because its first cases flow from
this continent’. The reluctance to comply with the arrest warrant for Al Bashir
is in line with the criticism that the Court’s work is undermining peace
efforts or conflict resolution processes. Furthermore, an objection has been
voiced that the ICC has deigned to proceed against a sitting head of state of a
country that is not a party to the Rome Statute.
Kenya
refused to arrest Al Bashir on 26th August 2010 when he attended the
promulgation of her new constitution. This clearly is a total disregard of her
obligations towards the ICC.
