President Uhuru Muigai Kenyatta has asked Parliament to act on resolutions it first made more than four years ago to cut ties with the International Criminal Court (ICC), signalling a hardening of his government’s position against the court.
Kenyatta made his request in March this year. However, just a month later Attorney General Githu Muigai sought to assure a symposium on international crimes that Kenya remained committed to the ICC.
The President’s request is in a report on how the government is implementing Kenya’s international obligations. He submitted the report to Parliament on March 26 together with the State of the Nation speech he delivered that day. The National Assembly has debated the speech, but there has not been a debate on the report Kenyatta presented nor has Parliament acted on it.
In the report, Kenyatta submitted:
The National Executive is aware that the National Assembly of the 10th Parliament approved a resolution “To Suspend Any Links, Cooperation and Assistance” with the ICC. This position was subsequently affirmed by a Resolution of the National Assembly on 5th September, 2013 and by the Senate on 11th September, 2013 respectively. Parliament is urged to take such necessary measures to ensure the actualization of this resolution but to do so in a manner that respects our Constitutional Order.
International Justice Monitor obtained a copy of the report entitled, Report on Progress Made in Fulfilling the International Obligations of the Republic. It is dated March 2015 and covers the period 2013 to 2014.
The 10th Parliament Kenyatta referred to is the National Assembly session that opened January 2008 and lasted until March 2013. That National Assembly passed a resolution calling on the government to withdraw its membership to the ICC. It also resolved to repeal the International Crimes Act, which is the law that gives force to the Rome Statute in Kenya. Those resolutions were passed on December 22, 2010, a week after the then ICC Prosecutor Luis Moreno-Ocampo announced he had asked the court to issue summons to six individuals whom he had alleged bore the greatest responsibility for the violence that followed the December 2007 elections. Those resolutions have never been acted on.
The next time Parliament considered such a resolution was five days before the opening statements in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang. Ruto and Sang are on trial for three counts of crimes against humanity for their alleged roles in the violence that shook Kenya between December 2007 and February 2008.
In an October 15, 2013 submission to Trial Chamber V(a) on the issue, Attorney General Githu Muigai said there were several steps to follow after lawmakers passed the anti-ICC resolutions. These steps included tabling a bill, debating it, and passing it. Muigai said that if Parliament passed the bill, it would then go to the President for his assent. Muigai said that it is only at this point that the government would be required to act on Parliament’s resolutions.
Kenyatta’s request to Parliament to follow through on its resolutions on the ICC is contradicted elsewhere in the same report he updated Parliament with on the progress Kenya is making in meeting its international obligations. The 279-page report is in two parts. The first is a description and analysis of what Kenya’s international obligations are and how the government has implemented or is implementing them. The second part is a breakdown in table form of the implementation of each agreement or treaty Kenya is a signatory to, challenges doing so, recommendations for future action, and the benefits to Kenya.
In the table concerning the Rome Statute, there is no recommendation to Parliament to implement its resolutions on the ICC. Instead the recommendations made are for “[p]rompt and effective national prosecutions of mass atrocity crimes to make sure the ICC remains a court of last resort as envisaged in the Rome Statute.” The only other recommendation is to “[c]ontinue to support complementarity.” In the “Benefits to Kenya” column, two benefits are listed. One is “commitment to the rule of law and respect of human rights.” The other is “deterrence of the possibility of impunity.”
The contradiction does not stop there. One month after Kenyatta’s request to Parliament, Attorney General Githu Muigai told a symposium on international crimes in the Kenyan capital Nairobi that the government remained committed to fulfilling its international obligations.
“I have only one message this morning, and it is a message confirming the commitment of the government of the Republic of Kenya to doing its part under the various international treaties and conventions that we have ratified and our own domestic law to combat international criminal activity with all the resources at our disposal,” Muigai told participants on April 28 at the symposium that was jointly organized by Riara University and Wayamo Foundation.
The theme of the symposium was “Ending Impunity Together: Domestic and International Prosecution of International and Transnational Organised Crimes.” Among the participants were Kenya’s Chief Justice Willy Mutunga; Germany’s Ambassador to Kenya, Andreas Peschke; current and former staff of international criminal tribunals and the ICC; academics; staff members of Kenya’s Directorate of Public Prosecutions; and law students.
“This commitment is unwavering, and I repeat it only because sometimes if you read our press or listen to some commentators domestically, and sometimes from other places, I believe that some of the work we have done and continue to do has gone unappreciated and I think it is regrettable,” Muigai continued.
The Attorney General affirmed he did not have “a shadow of doubt” that the government had fulfilled its obligations to the ICC.
“There may be different narratives as to what has been our level of cooperation. As to what we ought to have done to assist in this way or the other way. That is for historians to judge,” Muigai said.
The issue of whether Kenya has cooperated with the court is before the Appeals Chamber of the ICC. This follows a decision by Trial Chamber V(b) that found the government had not done all it could to assist the prosecution in its case against Kenyatta.
On the specific issue of Parliament’s resolutions against the ICC, Muigai has argued in the past that the government’s inaction on those resolutions demonstrates its commitment to the ICC.
“The Kenyan Government is keenly aware of the importance of States Parties providing the necessary cooperation and assistance to the Court in line with the obligations of Part IX of the Rome Statute. It is in this spirit that the Kenyan Government refused to withdraw from the Statute following the overwhelming vote in the 10th Parliament of the Republic of Kenya’s requesting the Government to take such action,” Muigai wrote in an April 8, 2013 submission.
“To the contrary, the Kenyan Government established an ICC Cooperation Committee whose primary responsibility is to ensure that all matters pertaining to cooperation between the Kenyan Government and the ICC are properly and promptly addressed,” Muigai continued in the same submission.
When Parliament has passed resolutions against the ICC, such resolutions have been timed with a significant development in the Kenya cases before the court. In December 2010, it was the announcement of the prosecution’s list of suspects. In September 2013 it was the start of the trial of Ruto and Sang.
The president’s request to Parliament to act on its resolutions against the ICC does not coincide with any significant development in the case. This could be that the government thought the issue was best raised in the president’s annual report on Kenya’s fulfillment of its international obligations that accompanies his State of the Nation address, which is usually made in March each year.
The request comes months after the prosecution withdrew its charges against Kenyatta in December last year. Trial Chamber V(b) terminated the charges against him on March 13 this year. Kenyatta had faced five counts of crimes against humanity before the charges against him were dropped.
When Parliament passed resolutions against the ICC in September 2013, Trial Chamber V(a) took notice of this. The chamber scheduled a status conference on September 18, 2013 to discuss any implications for the trial of Ruto and Sang. During that discussion senior trial lawyer Anton Steynberg told the chamber that that two prosecution witnesses, who had been scheduled to testify at the time, said they were scared because they felt the resolutions of Parliament put them at greater risk if they testified before the ICC. (An official transcript of that status conference is available here.)