Kenya will become the first country to pull out of the International Criminal Court after legislators Thursday staged what amounted to a parliamentary revolt against the trials of the president and his deputy, scheduled to start next week.
An overwhelming majority of National Assembly members voted after four hours of largely one-sided debate to “withdraw from the Rome Statute,” the treaty that established the world court in 2002.
The move was a clear snub to Kenya’s traditional allies in the West, who largely support the ICC and who have warned that Kenya risks isolation if its leaders fail to attend their trials.
Though it will likely play well with the many ordinary Kenyans whose support for the ICC has eroded as cases have dragged on, the vote will, in fact, have no effect on the eight separate charges of crimes against humanity faced by Uhuru Kenyatta, Kenya’s president, or William Ruto, his deputy. Mr. Ruto’s trial begins Tuesday in The Hague.
“A government’s decision would not change Kenya’s obligation under international law … to fully cooperate with the ICC in respect of cases that have already been initiated,” says Fadi El Abdallah, spokesman for the ICC.
“It’s not possible to stop independent judicial and legal proceedings via political measures.”
Fatou Bensouda, the ICC’s chief prosecutor, put it more bluntly: “The judicial process is now in motion,” she says. “Justice must run its course.”
Fewer than half of Kenya's 349 legislators were present in the National Assembly chamber, with its banked rows of red leather-backed chairs and heavy red, green and black carpet.
Lawmaker Aden Duale, began the debate by saying the motion would "protect the sovereignty of our country and of our citizens" and "redeem the image of Kenya."
Another legislator, during raucous speeches, said it was time to condemn the ICC to "the cesspool of history."
Opposition legislators, who had said they would try to block the proposition, walked out en masse when they realized that they would not have the numbers to overturn the motion.
One, Jakoyo Midiwo, said before he left the chamber, that it was "a dark day for Kenya" and that the country would "suffer consequences of pulling out."
Mr. Kenyatta, and Ruto, who deny all the ICC charges, are accused of having links to election violence that followed Kenya’s 2007 election, when they were political opponents.
They are said to have been “indirect co-perpetrators” of the two months of clashes that left more than 1,100 people dead and some 600,000 homeless.
Both have repeatedly promised to cooperate with the court, a position that was – officially at least – still in place as the parliamentary debate got underway.
'Setting the stage'
But analysts question if Thursday’s special sitting of the National Assembly, which was recalled from recess for the vote, was in fact preparing the ground for Kenyatta and his deputy to turn their backs on the court.
“They seem to be setting the stage for some level of non-cooperation at some point,” says Mwalimu Mati, director of Mars Group, a Kenyan governance watchdog.
“The vote seems to be a way for them to create a situation where they can say that the Kenyan people, through their representatives at the National Assembly, no longer want anything to do with the ICC," Mr. Mati continued. “That would make the survival of two individuals a matter that would have an impact on an entire country.”
And that it would. A withdrawal from the international body would likely further chill relations with traditional allies in the West, including the US, whose officials have repeatedly called for an end to impunity for political violence in Kenya.
On his summer trip to Africa, US President Obama bypassed Kenya, his father’s homeland, because it was considered improper and perhaps embarrassing for him to be hosted there by men accused of crimes against humanity.
Now if Kenyatta and Ruto refuse to turn up for their trials, the court’s judges can request arrest warrants are issued for them. Also, their travel beyond sympathetic states in Africa and, importantly, China, would be restricted. They may face individual economic sanctions.
All of this risks turning Kenya into a fringe state similar to Sudan under President Omar Al Bashir, who has ignored his indictment at the ICC for more than four years. (Sudan, unlike Kenya, is not currently a signatory to the ICC; the warrant against Mr. Al Bashir was referred by the UN Security Council.)
But all this is increasingly irrelevant to Kenya’s leaders, and its people, says Ngunjiri Wambugu, director of a Nairobi think tank who supported the move to withdraw the country from the Hague court.
“There’s no way this motion would have got this far if there was not support for it at the very top, and I think Kenyans are not really that worried about international law at the moment,” he says.
“The conversation that’s going on here is that, yes, there may be no justice brought for the victims of the post-election violence, but if we pursued that justice would we compromise where we are now, in peace?," Mr. Wambugu asks, and answering his question offers that, “Yes, it is impunity and yes, it is unjust, but is it so important to go back six years and go into all that again? Or should we close that chapter and make it a memory that we don’t forget, but we don’t dwell on dangerously, either?”
Kenya’s decision to withdraw from the Rome Statute will not take effect for a year from the date that it officially applies to pull out. The country’s upper house of parliament, the Senate, will also need to ratify the motion, which it is expected to do.