Kenya sends mixed signals on the ICC – Part 1

In this first part of a four-part series, ICC Kenya Monitor writes about the Kenyan government’s cooperation with the International Criminal Court through its court filings and public statements. 

The African Union’s (AU’s) resolution on the Kenya cases at the International Criminal Court (ICC) is part of a three-pronged strategy the Kenyan government has been executing over the past two months with regards to the ICC, where the president and deputy president are scheduled to face trial.

On Monday last week, African leaders resolved to direct the AU’s executive arm to ask the United Nations Security Council to refer the upcoming trials President Uhuru Muigai Kenyatta, Deputy President William Samoei Ruto, and radio journalist Joshua arap Sang face at the ICC to Kenya’s criminal justice system.

This will be the second time in two years the AU will be lobbying the Security Council on the Kenya cases. The last time it happened, the AU’s efforts stopped at the informal consultations stage when it emerged there were few takers to have the Security Council use its powers under the Rome Statute, which founded the ICC, to get the Kenya cases deferred for a year.

Kenya’s strategy this year seems to be threefold. One is aimed at assuring the ICC that Kenyatta and Ruto will respect the conditions the court set that allows them to move freely, known as the conditional summons in the court’s parlance. The other two aims seem to be to assure the ICC the government is cooperating with its requests for information and other needs while at the same time reassuring the political base of Kenyatta and Ruto that they are taking the fight to the court.

The first part of the strategy is an April 8 application Attorney General Githu Muigai made to Trial Chamber V aimed at assuring the court that Kenya, as a member state of the ICC, is meeting all its obligations. Muigai said that he was making the application following submissions ICC Prosecutor Fatou Bensouda made in the course of March to the court that Kenya had offered only limited cooperation to the Office of the Prosecutor. Trial Chamber V, which has since been split into two separate panels to handle the two Kenya cases, granted Muigai’s application and asked the different parties to make observations. The prosecutor, lawyers for victims, and Ruto’s and Sang’s lawyers have submitted their comments on Muigai’s application. Lawyers for Kenyatta did not file any response. The judges are yet to make a decision on Muigai’s application, possibly because of changes last month to the composition of Trial Chamber V. Also, last month the Attorney General applied to be allowed to respond to the prosecutor’s comments.

The second part of the strategy has involved Kenyatta and Ruto making clear public statements that they will appear in court when required. In the lead up to the March 4 presidential election there had been speculation that if Kenyatta and Ruto were elected into high office, they would not show up for their trials as required under the Rome Statute. Kenyatta, Ruto, and Sang have been free to go as they please since they made their first appearance in court in April 2011. This is because when the prosecutor applied to the court to consider the charges against them he asked they be issued with summons, instead of arrest warrants. The judges of Pre-Trial Chamber II agreed with the prosecutor but set three conditions, including that the three have to attend all hearings. When Trial Chamber V took over the Kenya cases last year, it reconfirmed the conditional summons for Kenyatta, Ruto, and Sang.

The speculation is that given Kenya’s history where no sitting president has been taken to court, or appeared in court in person for whatever reason, then it is unlikely that Kenyatta and Ruto will do so now that they occupy the country’s two highest elective offices. This speculation did not abate once they were confirmed into office by the Supreme Court’s March 30 decision, which dismissed petitions challenging their election. From when the Independent Electoral and Boundaries Commission declared them president and deputy president on March 9 until last month, Kenyatta and Ruto had made indirect statements about international obligations and responsibilities. Then in mid-May they both made public and clear statements on the issue.

Kenyatta made his statement in a May 10 interview during the World Economic Forum on Africa, which took place in Cape Town, South Africa. He said that he will attend his trials because it is his responsibility as the leader of Kenya, which is a member state of the ICC.

“Second, I have a personal commitment because it is my name and it is my family’s name that is on the carpet. And I have every single intention of ensuring that I clear my family name going forward, not just for myself but for future generations that will bear my name,” said Kenyatta in an interview that was aired on the BBC on May 14.

About a week later, Ruto appeared at The Hague before Trial Chamber V. His appearance was not required because the judges had called a status conference to discuss defense and prosecution applications. Generally, accused persons are not required to appear for such conferences at the ICC, and the conditional summons for Ruto and Sang do not require them to be present during status conferences. That being the case, Ruto then made an unsworn statement to the judges, reconfirming that he will attend his trial hearings.

“I have submitted to the jurisdiction of this court when required and will, without any fear of contradiction, do so in the future. This is so because I believe firmly in my innocence and, secondly, I believe in the rule of law,” Ruto told the judges on May 22. Sang, who was also in court that day, did not make any statement to the judges.

The second part of this article looks at the push to have the Kenya cases discussed at the UN Security Council.