This week all eyes will be on The Hague where the first trial at the International Criminal Court (ICC) of a sitting deputy president will begin. However, the focus will also be on Nairobi to see whether the Kenyan government will follow through on parliament’s resolution to pull out of the ICC.
Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang face three counts of crimes against humanity for their alleged role in the violence that shook Kenya following the controversial December 2007 presidential poll. More detail about the historical and legal background of the Ruto and Sang trial can be found here.
Their trial begins on Tuesday and will run until October 4. It will resume on October 14 and then adjourn on November 1 to make way for the second Kenya case, which is scheduled to begin on November 12. That case will be the first trial at the ICC of a sitting head of state. President Uhuru Muigai Kenyatta faces five counts of crimes against humanity for his alleged role in the violence that nearly tore apart Kenya in early 2008.
Five days before the trial of Ruto and Sang was to begin, the National Assembly sat in a special session on Thursday to debate Kenya’s relationship with the ICC. It was a special sitting because members of the National Assembly have been on recess since August 6 and are scheduled to return to work on September 17. The Majority Leader, Aden Duale, however, requested the Speaker of the National Assembly to call back the lawmakers from their recess to debate the motion. Duale leads the lawmakers of the Jubilee Coalition in the National Assembly. Kenyatta and Ruto are the top leaders of the Jubilee Coalition, which is made up of their respective political parties and other allied parties.
The MPs supporting the motion that Duale tabled on Thursday spoke in heated terms, arguing that if Kenya pulled out of the ICC, the country would be restoring its sovereignty and taking the fight to the neo-colonialists, a reference to the United States and Europe. They also argued that the Kenya cases at the ICC were poorly investigated and claimed that the witnesses had been coached, in some cases by local civil society groups. At some point during the debate the motion was amended to remove a reference to suspending cooperation with the ICC immediately. All lawmakers who supported the motion are members of the Jubilee Coalition.
Those opposed to the motion wondered why the National Assembly was being called to debate the ICC issue when matters directly affecting ordinary citizens were not being addressed, such as the effects of a recently implemented sales tax and insecurity in some parts of the country. They also questioned the timing of the motion and whether the promoters of the motion had considered its implications. After a handful of MPs opposing the motion spoke, most opposition lawmakers walked out of the debating chamber. A few opposition MPs remained behind to continue explaining why the motion should be opposed and challenging some of the statements of the supporters of the motion.
Eventually a vote by acclamation was called and the ayes carried the day. The motion that was passed called for two things: the government to immediately begin the process to notify the United Nations Secretary-General of Kenya’s withdrawal from the ICC and a bill to repeal the International Crimes Act be presented in the National Assembly within 30 days for debate. The International Crimes Act is the local law that covers the provisions of the Rome Statute that set up the ICC. After the Thursday sitting, the National Assembly returned to its recess and will be back at work on September 17.
The next step will be the government’s, which is why this week the focus turns to the government and what it will do with the motion passed by the National Assembly. The Senate is also expected to break its recess to have a special sitting this week to consider a motion similar to the one that the National Assembly debated. After the Senate debate, the government may choose to act or let the National Assembly motion against the ICC remain in abeyance. This has happened before. In December 2010, the National Assembly debated a similar motion, which was also passed by a vote by acclamation. The government never acted on it, and the matter ended there.
Just like now, in December 2010 there was an air of crisis in political circles. The December 22, 2010 debate took place a week after the then ICC Prosecutor made public the six individuals he wanted charged for crimes against humanity for their alleged roles in the early 2008 violence. The September 5, 2013 debate took place just days before Ruto was to start his trial and when some politicians began to believe that the court’s tentative schedule would see both Kenyatta and Ruto at The Hague, raising the question of who will be in charge back home.
The judges, who have the final say on the trial schedule, had already indicated as early as February this year that it was likely the two trials would run alternately because of logistical considerations. Since February, the cases are being handled by separate trial chambers, but two judges serve on both trial chambers making it difficult to hold concurrent sittings of the Kenya cases. This was reiterated during the status conference today for the Ruto and Sang case when Presiding Judge Chile Eboe-Osuji indicated that the judges do not see the trials taking place concurrently. He said that they have decided to alternate between one trial and the other for a period of a minimum of four weeks each.