The Kenyan Choice: Why article 16?

The recent rejection by the United Nations Security Council (UNSC) of the request (bid) to defer the ICC cases of the Ocampo six as lobbied has definitely in recent days incited many to comment on the Kenyan situation and cases pending before the ICC.  First there is the debate, or rather the more popular view that Kenya went against the accepted order by directly approaching the UN Security Council instead of the ICC first, before requesting deferral of the two cases currently before the Court.

In my view there must have been reasons why Kenya has chosen to take this particular route, instead of the latter.  Article 16 as we recall, allows the UNSC to defer an ICC investigation or prosecution for renewable 12 month periods under the directive to preserve international peace and security.  If Kenya chose to directly approach the ICC, then Kenya would have to invoke Article 19 of the Rome Statute, which briefly summed up would allow it to challenge the admissibility of the two pending cases. This challenge could only be made if Kenya could demonstrate that they would try the same individuals for the same or similar crimes that in the realm of reliable national proceedings.

We must not forget that Kenya did show its good intentions by adopting the International Crimes Act in 2008 into its legislation.  This piece of legislation was passed into force on 29 May 2009, and its application was said to bring Kenyan criminal law in uniformity with international criminal law, but could not be relied upon as it was passed into force only after the post-election crimes were committed. Its retroactive application is still considerably disputed upon.

Kenya was then left with the difficult task of creating a Special Tribunal mandated to prosecute crimes with an international character and particularly crimes committed during the post-election violence, but this idea was soon abandoned when gaps in the Kenyan domestic system were exposed and when it became difficult to reconcile Kenyan Penal law with principles and usages of international law (see Okunda v Republic State and Pattni and another v Republic). If Kenya were to approach the court directly under article 19 it would not be in a position to demonstrate that it had a viable judicial mechanism ready to prosecute the alleged perpetrators, so instead, it opted to approach the UNSC.

I’m assuming that Kenya’s intention to approach the UNSC directly was mainly in the hope that the one year deferral could be granted, and in the interim period work to strengthen its judiciary and thereby encourage the transfer of cases onto Kenyan soil.  Secondly, by employing article 16, Kenya has not necessarily erred. It is clear that African justice is restorative in nature, the restoration of peace and harmony is a fundamental element of African culture. Given the political nature of the cases and the divisions inherent in the newly formed coalition government, violence could easily erupt again, and peace could once again be compromised.

The deferral if granted could serve Kenya’s interests by opening a route to try the six suspects on Kenyan soil and restoring the credibility of the country which has suffered since the onslaught of the 2007/08 post election violence. Secondly, if the deferral were granted, it could also be perceived as promoting the interests of international criminal justice.  It would elevate the principle of complementarity to its intended role as envisaged by the drafters of the Rome Statute by giving national jurisdictions a chance to prosecute first, before the ICC decided to step in.

On the political level it would strengthen the relationship between the African Union and the ICC, which is regarded as one of a mutual dependence. If African States withdraw from the ICC, then the institution will lose its legitimacy and possibly become non-operational, given the fact that Africa makes up for a large part of its constituency. Similarly, Africa has come to depend on the ICC to prosecute those who cannot be prosecuted at the local level and assist in ridding Africa of violence which is ongoing on the continent.

As the situation currently stands, the government has had no other option but also to play its article 19 ‘hand’.  It recently formally filed an application at the ICC under article 19, to declare both cases inadmissible and latest rumors purport that the Kenyan government is infact reforming it’s judicial and police systems to bring it in line with international standards. Whether the application to declare the cases inadmissible will succeed is most probably unlikely and a separate issue for a later discussion.

I also think that part of Kenya’s reasoning in following this course of action is exacerbated by the stalemate which has developed between the African Union and the ICC. It comes as no surprise that the relationship between the two parties are clearly worsening, given the current caseload of the Prosecutor (all of which are African) and the lack of prosecutorial involvement by the Office, in other parts of the world (examples include Gaza, Myanmar amongst others). 

The criticism is that this double standard is starting to compromise the institutional legitimacy of the organization in Africa and the African Union’s (AU) trust in the ICC; this, in view of the AU’s support for the Kenyan deferral and the increasing tension between the two parties.

To stretch the issue even further there are even certain commentaries which aver that the Prosecutor must be seen as political tool under the control of the US and Europe. These key players, it has been said have a vested interest in the political developments in Kenya and favor an Odinga based Presidency. 

The ongoing tug-of- war struggle for power between the Party of National Unity (PNU) and its coalition counterpart the Orange Democratic Movement (ODM) is cause for concern. Raila Odinga’s (ODM) recent attempts to persuade the UNSC to reject the proposed deferral has been met with suspicion as being part of a bigger plan to keep Kenyatta and Ruto out of the upcoming 2012 presidential race, and what better way to eliminate the competition, than to have them detained in the Hague.  

Some might think that these ideas are far-fetched, but I believe that there is definitely a strong political element involved in the decisions taken by the Prosecutor and the strategy he employs in deciding to prosecute a case or not.  A topic, I will reserve for another time.  

Posted By Ingrid Roestenburg-Morgan