ICC case set wrong precedent

The International Criminal Court (ICC) case involving Uhuru Kenyatta and William Ruto has resurfaced as we go into another election.

Many individuals potentially facing disqualification in this year’s general election due to criminal charges against them in the courts are relying on the precedent set by the ICC case in 2013 to gain clearance.

Then, Kenyan courts allowed the Kenyatta-Ruto (UhuRuto) pair to vie for political seats as President and Deputy President, respectively, while still facing crimes against humanity charges at the ICC in The Hague, the Netherlands.

The judgment set a bad precedent that is expected to give a lifeline to people whose credibility has been put to question due to serious criminal charges that they face.

The political aspirants wishing to rely on the ICC precedent face serious crimes such as corruption, abuse of office, murder, fraud and rape.

Two wrongs cannot make a right. Therefore, relying on the ICC precedent is bound to lead to further erosion of Chapter Six of the Constitution, on ethics and integrity.

Seek justice

Political aspirants who want to rely on the ICC precedent to vie for seats must clearly have seen a weakness in the law that they are exploiting in court rather than a quest to seek justice. That weakness should be interpreted as financial influence or duress from political parties on the courts. The ICC precedent is a bad one and should never be misconstrued as having any legal standing. Reliance on it by Kenyan politicians is based on impunity.

During the ICC case, claims were made by Kenya that the West was interfering with the sovereignty of the country, which was not the case. The attack on the West, in relation to the charging of Kenyatta, Ruto and four others at the ICC, was a pure populist agenda to turn the Kenyan public against the ICC.

The crux of the ICC case was pursuit of justice for victims of election-related violence that engulfed the country in 2007/2008. The shocking violence, which left thousands of Kenyans dead and millions displaced, was deemed as having passed the threshold of international crimes, namely, crimes against humanity. Therefore, individuals responsible were to be held accountable for the crime at an international court.

Kenya was also disingenuous in suggesting that the work of the ICC prosecutor in the country after the 2007/2008 violence to investigate and then charge those found culpable for crimes against humanity was because of pressure from the West.

Signed and ratified

Kenya is among the 124 countries that signed and ratified the Rome Statute, which established the ICC in 1998. The court’s mandate is to try individuals who commit genocide, crimes against humanity, war crimes and aggression.

Every member state has jurisdiction under the Principle of Complementarity to charge any individual who commits international crimes, irrespective of where they took place. Kenya was given the opportunity to do so and failed to charge the suspects behind the 2007/2008 violence or even establish a special tribunal to deal with the matter. There was no alternative but for the ICC prosecutor to open a case against the suspects in the Hague as mandated by Article 13 of the Rome Statute.

The courts in Kenya erred, therefore, by allowing UhuRuto to vie in 2013 while still facing international crimes charges at the ICC. They undermined the work of the ICC and breached international norms by which Kenya was bound as a member of the Rome Statute.

The local courts’ decision was informed by nothing but impunity. Kenyan courts could not have failed to assume jurisdiction on complementarity basis as required by international law on one hand but pass judgment on a matter under the jurisdiction of an international court on the other.

Criminal cases

The decision to clear UhuRuto to vie did not stop the work of the ICC, however. Neither did it clear the clouds of criminality hanging over their heads at the time as the case proceeded. The fact that Kenyan courts had failed to act on international crimes committed in the country meant they had no right to pass judgment on any matter concerning the ‘ICC Six’ as Kenya had lost the jurisdiction to do so.

Therefore, the idea of politicians currently facing criminal cases seeking to rely on the 2013 precedent is informed by impunity, misinformation and illegality. Those facing international crimes are in breach of Chapter Six of the Constitution just as anyone else facing criminal cases in a domestic court.

The test case should not be about the location of the courts but the crimes committed. Therefore, aspirants with criminal cases in courts, domestic or international, have presumed integrity issues and should be disqualified from vying until their cases are fully determined.

Ms Guyo is a legal researcher. [email protected]. @kdiguyo