Thursday, September 19, 2013

Kenya quitting ICC: Will it have a domino effect?

By Asiimwe Stephen
The debate about the International Criminal Court has been very intense and divisive in Kenya for the last three years.
Before the former ICC prosecutor, Luis Moreno Ocampo, invoked his powers in article 15 of the Rome Statute to the ICC to commence investigations in Kenya, very few Africans, and particularly Kenyans, knew the existence of such a court, but very few understand the working of the court and the politics and diplomacy dynamics that surround the court.

Should Kenya pull out of the Rome Statue that established the International Criminal Court? Is ICC another pseudo-neo-colonial entity used by tormentors against Africa having all 18 cases at Hague from Africa? Can ICC deliver justice? What is the fate of the victims?

In Uganda, Kenya, Sudan, Ivory Coast and in countries where ICC fears to investigate leaders like Syria, USA and Egypt? Some argue that countries that are not signatory to ICC, what would happen to leaders in those countries who commit crimes and are set free?

For example those who were involved in Iraq on pretence of weapons of mass destruction? Can NGO’s write a report on Iraq’s mass destruction?

The answer is a big NO, because those countries are babysitters of NGO’s. On September 5, 2013, the National Assembly of Kenya was recalled from recess for a special sitting to debate the ICC.

The senate also held a special sitting on September 10, 2013. Watching the debate one would confirm that few understand the operations of the court.

Therefore it is important for us to appreciate that the withdrawal may not necessarily solve  the challenges Africa has, after all Parliament in Kenya failed to approve a Bill to create a local tribunal and the comment was; don’t be vague let us go to Hague since Uhuru, Ruto and Sang have all cooperated with the court since trials began, my argument would be to continue searching for justice at Hague like Maj. Gen. Ali Muhammed- former commissioner of police, Dr. Kosgei- chairman Orange Democratic Movement (ODM) and Moses Mathaura former head of civil service, who were all acquitted by the same court.

Withdrawing may not be a bad idea but the process may be hectic, starting with Article 2 of the Kenyan constitution and the United Nations, the argument that United States of America withdrew might be a dilemma, even after withdrawal, Kenya could still find itself caught up in Labyrinth of the jurisdiction of the ICC for the crimes committed on the Kenyan soil.

This is because under Article 13 of the Rome Statue, the jurisdiction of ICC could be properly invoked through a referral of a situation to the Office of the Prosecutor (OTP) by the UN Security Council.

This is the avenue through which the ICC assumed jurisdiction in Libya after France through Sarkozi and their allies killed Col. Maumuar Gadaffi and Sudan over the crimes committed in the Darfur conflict.

The threat of ICC will continue to hover over the heads of Africans like the sword of Damocles even after the withdrawal unless Africa invests in the development of strong judicial institutions and an effective criminal justice system like the Gacaca in Rwanda that gives hope to victims.

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