Monday, 15 May 2017

Motion without movement: Kenya's armchair cooperation with the International Criminal Court

Here are some of the highlights of my presentation later today at the Abidjan conference on international criminal justice and the fight against impunity in Africa. The paper is titled: 'Motion without movement: the theory and practice of Kenya's armchair cooperation with the ICC and lessons for Cote D'Ivoire'.
1. Kenya ratified the Rome Statute on 15th March 2005 and became a Member State on 1st June 2005.
2. Kenya domesticated the RS through the International Crimes Act on 1st January 2009. The ICA is defined as 'an Act of Parliament for the punishment of certain international crimes, namely genocide, crimes against humanity and war crimes, and to enable Kenya to cooperate with the ICC in the performance of its functions'.
3. Kenya's obligations under the RS are further solidified by Article 2(6) of the Constitution which provides that all treaties and conventions ratified by Kenya shall form part of the laws of Kenya.
4. The obligation to cooperate with the ICC, therefore, has three sources: The Rome Statute, the Constitution, and the ICA.
5. The ICA is a comprehensive regime providing for the cooperation of the Kenyan state with the ICC. Its key provisions include a definition of international crimes and offences against the administration of justice; provisions relating to requests for assistance; arrest and surrender of persons to the ICC; domestic provisions for other types of cooperation; enforcement of penalties; and investigations or sittings of the ICC in Kenya.
This is the theory; what is the reality?
Despite all of the above...
1. In August 2010, President Bashir of Sudan, wanted by the ICC on charges of crimes against humanity and genocide, visited Kenya for the inauguration of the new Constitution and was not arrested despite Kenya being under an obligation to arrest and transfer him to the ICC. Later that year, however, he was scheduled to return to Kenya for an IGAD meeting, but the International Commission of Jurists-Kenya, whose board I chair, went to court and successfully obtained a provisional warrant of arrest which directed the minister for the interior to arrest Bashir should he ever set foot in Kenya. The meeting was as a result moved to Addis and Bashir has never visited Kenya again as the warrant remains in force. This is one of the few cases where Kenya's cooperation obligations have been upheld.
 2. In 2010, the then ICC Prosecutor Moreno Ocampo tried to obtain the testimony of Senior police chiefs who had served in PEV hotspots but they went to court and stopped the process in its tracks. The AG dragged his feet in appealing the ruling and the entire process stalled.
3. The Uhuru Kenyatta case was withdrawn in December 2014 with the prosecutor citing interference with witnesses and Kenya's failure to cooperate in the investigation. OTP had requested Uhuru's land, company, telephone and financial records, but the Kenya government's response was equivalent to armchair cooperation where there was much motion without movement.
4. In November 2013, the OTP petitioned the Trial Chamber to make a finding of non-compliance against Kenya for failing to cooperate with the investigation.
5. In December 2014, the Trial Chamber held Kenya to be non-compliant but failed to refer Kenya to the Assembly of State Parties as is expected under the Rome Statute stating that the Chamber had a discretion whether to refer a state or not and that after weighing all consideration, had decided not to refer. The prosecutor appealed the decision.
6. In August 2015, the Appeal Chamber ruled that the Trial Chamber had misdirected itself as to the exercise of its discretion and referred the matter back to the TC for a fresh consideration.
7. In September 2016, the TC issued its final ruling finding that Kenya was non-compliant and referring it to the Assembly of State Parties. The ASP is expected to consider the matter at its annual sitting in New York in November 2017.
8. In the meantime, the ICC has indicted three Kenyans offences related to bribing of witnesses with a view to defeating the course of justice under Article 70 of the Rome Statute. Despite three outstanding arrest warrants against them, they remain at large in Kenya as their cases against transfer to the ICC drag through the courts.
9. The President has gone on record as stating that "no other Kenyan will ever be prosecuted by a foreign court."
10. Throughout the Kenyan cases, the Attorney General has acted more like a defence counsel for the accused persons rather than the defender of the public interest.
11. As opposed to cooperating in good faith with the Court persuant to its obligations under the Rome Statute and its Constitution, Kenya mounted a massive diplomatic and political campaign against the ICC aimed at forcing the withdrawal of the cases against Uhuru Kenyatta and William Ruto.
12. Parliament has passed two motions calling for Kenya's withdrawal from the RS and a bill has been tabled for the repeal of the International Crimes Act.
Key lessons:
1. Like the Rome Statute, Kenya's cooperation regime under the ICA is perfect as long as those who are being prosecuted do not wield political power. When they capture power, as they did in Kenya, then no law, however well written, can overcome the obstacles they place in the path of justice.
2. Kenya has consistently claimed to have "fully cooperated with the Court". There is need to define what full cooperation entails. It has to go beyond ticking boxes to ensure that it is judged based on the results it produces in the genuine fight against impunity.
3. The Prosecutor's conduct in the Kenyatta case was inconsistent. She sought an adjournment until such time as Kenya cooperated fully claiming, rightly, that the suspect should not benefit from the failure of the state which he heads to cooperate with the investigation. And yet, when her request for the adjournment was denied, she chose to withdraw the charges while at the same time contesting Kenya's lack of cooperation. The curious outcome was that when the Trial Chamber eventually ruled that Kenya was non-compliant and must be referred to the ASP, the outcome was a merely academic one as it would not affect the substantive case which had since been withdrawn.
4. The Court's (judges') conduct was also wanting. It took almost three years from the time the OTP filed its petition for non-compliance to final decision. Some would argue that it is not clear why the Trial Chamber would find Kenya non-compliant and yet refuse to refer it to the ASP, nor is it clear why, once the Appeal Chamber found that the Trial Chamber had erred, it did not just refer the matter directly to the ASP, nor is it clear why, once the matter was referred back to the TC, it took over one year for a final determination of the case.
5. It is ironical that the final stage of appeal for determination on cooperation issues lies with the Assembly of State Parties, which is a political body at which, often, political trade-offs, rather than the law, play a decisive role. It remains to see how the ASP will handle the referral of Kenya when it meets later this year.