Kenya Seeks to Withdraw From the ICC — A Potentially Disastrous Move

The Kenyan parliament’s approval of a motion to withdraw from the Rome Statute, which established the International Criminal Court (ICC), is a major defeat not only for Kenyans, but also for Africa and Kenya as the African regional seat of the United Nations.

The motion resolved “to introduce a Bill within the next thirty days to repeal the International Crimes Act (No 16 of 2008) and that the Government urgently undertakes measures to immediately withdraw from the Rome Statute of the International Criminal Court.”

The recent move is the zenith of a series of actions undertaken by the Kenyan government to undermine the ICC since the court charged President Uhuru Kenyatta and Deputy President William Ruto with crimes against humanity following the 2007 post-election violence that left more than 1000 people dead and an estimated 600,000 displaced. 

The motion is a defeat for Kenyans because it is attempting to undo the important safeguard that international law provides to national legal systems. The ICC was established as a court of last resort, which means it must give deference to national criminal jurisdiction. The court does not have jurisdiction where a state is willing or able genuinely to investigate or prosecute genocide, war crimes, crimes against humanity, or the crime of aggression. In this regard, the court is merely a backup for the sometimes inadequate protection provided by national criminal jurisdictions. South Africa, for instance, in order to safeguard against the travesty of apartheid-type justice added to its 1991 constitution that when interpreting the Bill of Right, courts must consider international law and may consider foreign law. Complementarity between national law and international law helps avert excuses of limitations of national legal systems to protect civilians from grave violations.

Moreover, Kenya’s attempt to withdraw from the Rome Statute undermines its standing as one of the few respected African countries in terms of law and order on the continent. In addition to the substantive effects of international law is the moral and international credibility it garners for a country. One of the most fundamental problems facing Africa is a failure of law and leadership, and membership to international legal instruments such as the Rome Statute represents national commitment to the rule of law. Conversely, secession from such respectable treaty as the Rome Statute signals a shameful legal retrogression for a progressive country like Kenya.

Symbolically, with Nairobi as the African regional headquarter of the United Nations, Kenya represents some hope for international order on the African continent. Therefore, the country’s motion to withdraw from the Rome Statute is a deliberate insult to a major international symbol of justice. In my view, the motion does not represent defiance against The Hague as expressed in some quarters; it is an act of cowardice in the face of demands for truth and justice for the victims of the 2007 post-election violence. 

There is one more parliamentary leap before full withdrawal. Kenyans should rally with the opposition Coalition for Reforms and Democracy (CORD) to prevent their country’s withdrawal from the court. As explained in a statement by the CORD, withdrawal from the Rome Statute “will be inconsistent with and defeat the purposes and objectives of the Constitution of Kenya and will not bring honor to the nation and dignity to our leaders.” This is an era in which Africans seek to advance the rule of law and to ensure that national governance is in conformity with international law and order. Such conformity will ensure protection for the people when their national legal instruments fail to protect them as in the case of the victims of the 2007 Kenyan post-election violence.

This article has appeared in the NewJurist.