[Op-Ed co-authored with Max du Plessis and published in the Business Day on 28 January 2011]
Kenya has recently become the epicentre of growing tension between the International Criminal Court (ICC) and Africa. Last month, the ICC prosecutor asked the court’s pretrial chamber to issue summons for six people on the grounds that they committed crimes against humanity in the post-election violence in Kenya in 2007 and 2008 (which claimed more than 1000 lives). The chamber, currently considering the request, authorised the prosecutor’s investigation in March 2009, partly on the basis that, despite indications that it would do so, Kenya had failed to seriously investigate the violence.
Aside from this investigation, Kenya’s relationship with the ICC came into the spotlight after its decision to thumb its nose at the ICC and invite President Omar al-Bashir of Sudan, wanted by the ICC for crimes in Darfur, to the launch of its new constitution last year. The profile of the "O’Campo Six" has inflamed Kenya’s growing anti-ICC sentiment: it includes three senior government officials, one of whom is the son of Jomo Kenyatta, the "father of the nation".
The latest move by prosecutor L uis Moreno O’Campo has thus sent Kenya’s political elite into reactive overdrive. Kenya’s parliament passed a resolution on December 22 calling for Kenya’s withdrawal from the Rome Statute, which founded the ICC. That decision prompted a backlash from civil society in Kenya and beyond. Although the threat of withdrawal remains in the wings, the immediate focus has apparently shifted to using the African Union (AU) summit next week to procure an AU resolution requesting the United Nations (UN) Security Council to defer the proceedings in Kenya under article 16 of the Rome Statute. Although the strategy clearly does not enjoy the support of all parties in Kenya’s coalition government, Kenyan Vice-President Kalonzo Musyoka maintains he has a mandate "as the special envoy of the p resident of the Republic of Kenya".
Internal schisms aside, the deferral strategy has gained momentum over the past week, and reportedly has the support of key countries such as SA, Nigeria and Ethiopia. Surprisingly, the rationale given for the deferral appears to be to allow the Kenyan authorities to deal with the alleged crimes.
This deferral approach should be discouraged. First, it is bad in law. A deferral (under article 16) can be used only if the UN Security Council determines that there is a threat to international peace and security. Not even the most pessimistic assessment of the ICC’s involvement in Kenya could characterise it as such.
Second , it is unlikely to succeed within the security council. And notwithstanding reports of SA’s support for Kenya’s agenda, upon proper reflection, SA should balk at such an expansive reading of the notion of threats to international peace and security. SA’s siding with Kenya is in contrast with Pretoria’s previous attempts to curtail the security council’s "mission creep" — witness SA’s position on Zimbabwe and Burma.
The request is likely to be associated with a now established pattern on the part of African states (who have made the same request in respect of al-Bashir) to seek deferrals in cases in which political elites are implicated. The outright refusal of the security council to accede to the al-Bashir request suggests Kenya’s request faces a similar fate. The danger is that the request is a hopeless political gesture. It is difficult not to conclude that it is designed to fail and increase the divide between the ICC and Africa.
The deferral request conflates two distinct aspects of the ICC: the power given at Rome to the security council to halt proceedings for one year in order to maintain international peace and security, and the principle of complementarity which ensures that the ICC is a court of last resort that intervenes only when national jurisdictions are unwilling or unable to do so. These two processes have differing ends and means, but the request seeks to use the means of article 16 to further the end of complementarity. While it is possible that the two may align, they do not in Kenya’s case.
For supporters of the ICC’s investigation in Kenya the request has thus been rejected out of hand. There are, however, a number of reasons to consider closely Kenya’s reliance on the complementarity principle. More than being a presumption in favour of local prosecutions, the principle of complementarity is at the heart of the ICC’s system. Aside from easing the concerns of states over threats to their sovereignty, the principle serves more noble ends, such as the utility of local prosecutions, and recognises the very real limitations of an ICC with potentially universal jurisdiction.
Therefore, should Kenya genuinely wish to conduct local trials, there are a number of reasons for allowing it to do so. First, it would relieve pressure on an already overburdened ICC. Second, should Kenya be allowed to do so, it would have positive effects for the ICC beyond diluting the mounting tension in Kenya. It would demonstrate to detractors in Africa that the ICC is designed to function only when national legal systems are unwilling or unable to prosecute international crimes. Third, complementarity has never been put to any real work, even though it is designed as an integral part of the Rome System. If the principle is to become effective, it must be taken for a test drive. Kenya presents an opportunity to do so.
Fourth, there is a danger in refusing Kenya the opportunity to exercise its jurisdiction over the crimes under the principle of complementarity. Kenya has one of the best developed judiciaries in Africa. It is also one of the few African states to have domestically implemented the Rome Statute, and the resulting legislation is impressive and progressive. In fact, until recently, Kenya was a model ICC state. If Kenya does not meet the threshold for complementarity, the implication is that neither would the overwhelming majority of other African states, making the principle a dead letter in Africa. This would be a sad reflection on domestic legal systems in Africa, and would embolden those who wish to present the ICC as an imperialistic mechanism on a "civilising mission".
Procedurally speaking, Kenya’s dilatory response to the atrocities means it has already missed chances to halt proceedings on the basis of complementarity. However, complementarity is in substance an continuing assessment. To consider it formalistically — as a static determination reified in time — would allow the ICC to turn a blind eye to positive domestic developments and undermine the principle’s worth.
Presuming there is genuine political will in Kenya to go it at home, Kenya’s newfound vigour for domestic prosecutions might be accommodated by the prosecutor exercising his discretion under article 53(4) of the Rome Statute to halt his investigation on his own accord based on new facts or information. There is no direction in the statute on what new facts of information might form the basis of such a decision, but the initiation of local proceedings could qualify.
What is more, there is no limitation on when such a decision can be taken. Based on the increased push by Kenya to be allowed to deal with the matter itself, O’Campo might use this article to conditionally suspend his investigation on the understanding that Kenya pursues its own investigations and prosecutions. The prosecutor could then monitor the proceedings in Kenya and, if he is not satisfied with them, either resume his investigations or (if necessary) approach the pretrial chamber for a renewed mandate to do so. This would be a unique example of complementarity at work.
Naturally, any decision on complementarity would involve weighing difficult factors. To push ahead with the ICC’s investigation might further alienate Africa at a time when the ICC and the continent are locked in an antagonistic dance. It is also not clear that the ICC will be able to secure Kenya’s future co- operation in any ICC-related investigation. So, too, the prosecutor will have every reason to be cynical of Kenya’s newfound enthusiasm for domestic trials, just as Kenya’s victims of mass atrocities ought to be exhausted by the tired slogan of "African solutions for Africa’s problems". The drafters of the Rome Statute foresaw the risk of such political manoeuvring. They guarded against it by insisting that the complementarity principle may not be abused by a state merely wishing to shield its own from justice. If that was the true domestic motive for invoking complementarity, then the drafters made it clear that the ICC would close the impunity gap and be accorded jurisdiction.
If Kenya’s complementarity request is approved, that success would place a rightfully heavy burden on Kenya — to show the world that its courts and prosecutors are genuinely willing and able to prosecute domestically. Kenya should thus be careful what it wishes for. And if Kenya’s posturing is a political ploy to protect its powerful, then the ICC will remain in the picture — something a large majority of Kenya’s population have all along insisted is a good thing.