A vote for impunity by Kenya's parliament

The International Criminal Court (ICC) is controversial among Africans. Many argue that the court targets Africans suspected of crimes within the jurisdiction of the court and turns a blind eye to similar international crimes committed by western leaders. It is commonly argued that if George W. Bush and his associates like Donald Rumsfeld and Dick Cheney were Africans, they would have been hauled to The Hague for crimes against humanity, including widespread torture, enforced disappearances and severe deprivation of physical liberty of terrorism suspects. Arguments against the ICC are compelling, but at the same time a vote to leave the court is tantamount to a vote for impunity.

On 5 September 2013, Kenyan MPs approved a motion to leave the ICC. The vote paves the way for Kenya to drop its obligations under the Rome Statute. Parliament claims that withdrawal from the Rome Statute is aimed at protecting Kenyan citizens and defending the sovereignty of Kenya.

When the news broke I tweeted a link to the news report with the words: "#Kenya MPs vote to withdraw from #ICC. Disappointing! A vote for impunity." I stand by my words.

The vote, in my assessment, is aimed at protecting President Uhuru Kenyatta and Deputy President William Ruto, both of whom have been charged with crimes against humanity by the ICC. Kenya's parliament is dominated by a coalition created by the duo. The parliament therefore has an interest in shielding them from prosecution at The Hague.

In my view, a vote to leave the ICC is a vote in favor of impunity. The ICC was set up by the Rome Statute to deal with crimes against humanity, war crimes, genocide and crimes of aggression. Withdrawal from a treaty that binds Kenya to the court means crimes that fall within the jurisdiction of the court committed in Kenya will go unpunished. There have been no justice for crimes committed during post election violence in 2007 in which more than 1,000 people were killed and 600,000 displaced. Impunity for the worst crimes is what Kenya's parliament, which is dominated by a coalition formed by suspected perpetrators of the 2007 violence, seeks to achieve. The controversial vote is not intended to protect the common man.

Pulling out of the Rome Statute is not a solution for perceived "hunting" of Africans by the ICC. The court can anyway pursue charges against suspected perpetrators in non-member states based on referrals by the U.N. Security Council - as in the case of crimes that were committed in  Darfur, Sudan and Libya under Omar al Bashir and Muammar Gaddaffi respectively.

In my opinion, in order to keep the ICC at bay African states should build strong legal institutions capable of delivering justice to victims of serious crimes of international concern. The ICC complements national criminal jurisdictions and comes in when a state is unable or unwilling to investigate and prosecute crimes within the jurisdiction of the court. A vote to withdraw from the court without a developed and impartial national criminal justice system is misguided.

Kenya ratified the Rome Statute in March 2005. Withdrawal won't halt on-going prosecutions. But it could affect initiation of future investigations and prosecutions.

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