Questions Over Kenya’s ICC Commitment

Sudanese leader’s visit to Nairobi sends worrying signal about whether Kenya will
cooperation with investigations into post-election violence.
By Geoffrey Nyamboga - International Justice - ICC
ACR Issue 268,
3 Sep 10
One doesn’t have to look very hard to see why Kenyans have doubts about whether th
e International Criminal Court, ICC, is ever going to be able to prosecute the o
rchestrators of post-election violence that swept their country at the end of 20
07.
“Tell [ICC prosecutor Luis] Moreno-Ocampo that he should not listen to the words o
f high-ranking people in the government, because they will only cheat him,” implor
es one woman from Naivasha in the east of the country, who was brutally raped as
she tried to flee the violence.
Nearby, another woman, whose husband was murdered and dismembered by a mob, says
the same thing.
One might have expected Nairobi to refrain from any action that might upset the
ICC or cast doubt on its commitment to assist the court’s investigation of the vio
lence.
But last week, to international alarm, Sudanese president Omar al-Bashir, for wh
om the ICC has issued an arrest warrant on charges of genocide and war crimes in
the western Darfur region, turned up in the Kenyan capital to attend the signin
g of a new national constitution.
For Bashir, it was a public relations coup. Back home in Sudan, state media crow
ed that his Kenyan trip, close on the heels of a visit to Chad, showed that ther
e were limits to the ICC’s influence over its member states.
In Kenya, the ill-conceived visit has simply reinforced fears that the governmen
t does not respect the jurisdiction of the international court and could frustra
te attempts to investigate the 2007 violence.
Moreno-Ocampo formally opened an investigation in May and promised it would be c
oncluded before the end of this year.
Although details of the investigation are a closely-guarded secret, there has be
en widespread speculation that the ICC is preparing to go after individuals in g
overnment for their allegedly part in the bloodshed.
This helps explain why many Kenyans doubt their government is wholeheartedly com
mitted to the investigation – fears that have only been compounded by news of Bash
ir’s visit.
As a signatory of the Rome Statute, the ICC’s founding treaty, Kenya was under a c
lear obligation to arrest Bashir if he set foot in the country.
However, the African Union, AU, has argued that the ICC’s arrest warrant is counte
r-productive given the quest for peace in Darfur, and has called on its members
not to enforce the warrant.
Ahead of Bashir’s visit, the details were kept secret. His name did not feature on
the Kenyan foreign ministry’s list of dignitaries invited to the constitution sig
ning. It had been assumed that Salva Kiir, the first vice-president of Sudan and
 head of the South Sudan regional government, would attend.
Bashir s visit is a slap in the face not only for the international rule of law,
but also for Kenyans who have been crying out for a new constitution for so lon
g.
More than two thirds of Kenyans approved the new constitution in a referendum he
ld on August 4.
It replaces a document drawn up in 1963, when the country gained independence fr
om British rule. Its main aims are to devolve power to the regions and to create
clearer divisions between the executive and legislature.
The new constitution also states that Kenya must comply with general internation
al law as well as the international treaties and statutes the country ratifies.
Bashir’s visit could thus be interpreted as the first violation of the new constit
ution.
The visit represents the second time in as many months that the Sudanese preside
nt has travelled to an ICC member state in defiance of the arrest warrant.
In July, he flew to Chad to hold talks with President Idriss Deby, signalling a
thaw in the troubled relationship between the two neighbours.
Since being indicted, Bashir has also visited Egypt and Qatar, but neither of th
ese countries is a signatory to the Rome Statute.
He has avoided other countries – notably South Africa and Uganda – for fear that he
would be arrested there.
The decision by Kenya and Chad to invite him and not seek his arrest is the late
st development in a tug-of-war between the ICC and the AU.
For the Sudanese leader, they are a triumph and provide an opportunity to highli
ght cracks in the unity of ICC signatory states.
As for the victims of atrocities who deserve to see justice done, and the Kenyan
citizens who have rallied behind the new constitution, they are a bitter insult
.
Geoffrey Nyamboga is an IWPR staff member in The Hague.
The views expressed in the article are not necessarily the views of IWPR.