Is the President meddling in an ongoing case?

On Saturday 17 April 2016, President Uhuru Kenyatta addressed a public rally in Nakuru. Much of it was the same-old politicking, but he did touch on something that I wanted to address- the question of whether Kenya can simply stop sending people to the ICC. Here’s the excerpt from his speech:-

There are many questions that arise from this speech.

  1. Did the President mean that all Kenyans- including those currently undergoing extradition proceedings- would not be transferred to the ICC?
  2. Did he mean that there would be no further transfers after all the extradition cases pending in the current Kenya situation are concluded?
  3. Was he in fact committing a contempt of court by pre-emptively declaring that he would not abide by the decision of an extradition court (in the event extradition was granted)?
  4. Or was he stating that Kenya was about to withdraw from the Rome Statute in an orderly manner?

Because I want to be generous to the President (but mainly because I don’t want to be the latest blogger arrested and prosecuted for hurting the PORK’s fragile feelings) I’m going to assume that answer is the last of those alternatives.

But this still begs the questions of how does Kenya go about withdrawing from the Rome Statute (and its obligations) and at what point is that withdrawal effective?

The question is important because the prosecutor has (with the authorisation of a pre-trial chamber) issued arrest warrants against Walter Barasa, Paul Gicheru and Phillip Kipkoech Bett. All are Kenyans and the warrants are still being challenged in Kenyan courts (and at snail-pace at that). Even if a decision is made to extradite, such a decision is subject to appeal- so add another couple of months of delay.

Kenya could refuse to cooperate with the ICC in enforcing the warrants if, in the opinion of the Attorney General or the Cabinet Secretary of Interior and National Government Coordination the surrender of the person is “unjust or oppressive” (International Crimes Act, s.19(2)). The other grounds for refusal in section 51 of the Act don’t really apply in this situation.

What exactly is ‘unjust and oppressive’? The ICA leaves that unsaid.

I don’t know about the Cabinet Secretary for Interior and National Government Coordination, but given the contempt the current AG  has for the court (see clip below), it’s very likely that just such a finding that Barasa, Bett and Gicheru are ‘oppressed’ by the undermining of Kenyan sovereignty by the ICC will be made.

While such a decision- as with any administrative action or decision- can be challenged in court, the lethargy that ICC-related litigation seems to attract amongst some members of the Kenyan judiciary leaves the possibility that the 3 suspects will enjoy a long, free and healthy life on Kenyan soil.

So, aside from simply refusing to cooperate, how can Kenya go about ending its ICC ties? Under the Rome Statute of the ICC, a state that wishes to withdraw must write to notify the Secretary-General of the UN (whose office is the depositary of the treaty).

However, one also has to remember that Kenya implemented the Rome Statute through the International Crimes Act (ICA). That law gives most of the Rome Statute the force of law ‘binding on the government’ (ICA, s.3). The indications are that Kenya still wants to retain the aspects of the ICA that define international crimes, incorporate these crimes into Kenyan law and specify sentences for those crimes (for example ICA sections 5-8). This is because those provisions provide a large part of the basis of the jurisdiction of the belatedly formed International Crimes Division of the Judiciary. So even if Kenya withdraws from the ICC Treaty, it will still have to amend the ICA to delete the provisions detailing cooperation with the ICC.

Supposing Kenya does all the above, what then? The withdrawal does not take place until one year after the notification is received (ICC Statute, Article 127). And in a sentence worth quoting, the ICC Statute says of the withdrawing state:

“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”

Summary: ‘proceedings’ such as the extradition/surrender proceedings have to continue until the court makes a decision one way or the other. Whether or not the government will obey any court order allowing surrender of Kenyans to the ICC I leave to those who’ve astutely observed the attitude of the President and his men towards international justice.