The Government of Kenya has made an application to the International Criminal Court, (ICC)to withdraw the case against six senior government ministers for orchestrating post-election violence in 2007. In a case which could define the issue of complentarity, the Government of Kenya says it now has the means to try these cases in it’s national courts and no longer needs the assistance of the ICC.
In March, Pre-Trial Chamber II of the ICC issued summonses: against William Samoei Ruto, a suspended Minister of Higher Education, Science and technology of the Republic of Kenya; Henry Kiprono Kosgey, Minister of Industrialization of the Republic of Kenya and the Chairman of the Orange Democratic Movement; and Joshua Arap Sang, head of operations at Kass FM in Nairobi; and Francis Kirimi Muthaura, Head of the Public Service and Secretary to the Cabinet of the Republic of Kenya; Uhuru Muigai Kenyatta, Deputy Prime Minister and Minister for Finance of the Republic of Kenya; and Mohammed Hussein Ali, Chief Executive of the Postal Corporation of Kenya.
In it’s submission the government argues that a new constitution and other changes made in 2010:
The new Constitution incorporates a Bill of Rights which significantly
strengthens fair trial rights and procedural guaiantees^ within the Kenyan
criminal justice system,
The Constitution gives effect to a comprehensive range of judicial reforms
which fundamentally transform the administration of justice in Kenya.
Deficiencies and weaknesses from the past have been specifically targeted to
guarantee the independent and impartial dispensation of justice.
National courts will now be capable of trying crimes from the post-election
violence, including the ICC cases, without the need for legislation to create a
special tribunal, thus overcoming a hurdle previously a major stumbling block,
The new Constitution guarantees the independence of the State’s investigative
organs and ushers in wide-ranging reforms to the police services.
An independent Commission for the Implementation of the Constitution is
established to monitor, facilitate and oversee the development of legislation
and administrative procedures required to implement the Constitution,
Kenya argues the case is now inadmissible, meaning the ICC has no jurisdiction over the case. The ICC was created by the Treaty of Rome and a major point of the court is something called “complementarity.” Complementarity means the court complements rather than supplants national court systems. The ICC can act only if the national authorities with jurisdiction to prosecute the court can not or will not prosecute or even investigate. Having first said it could not prosecute, can Kenya now prosecute and withdraw the case from ICC jurisdiction? Does a newly found will to prosecute render a case inadmissible before the court?
The ICC prosecutor delivered a list of 20 names to the pre-trial chamber in March, 2010. From this information, the court announced its summonses to six persons last month. Three of those six appeared at the ICC today, Kosgey, Ruto and Sang. They are charged with war crimes
This case presents a real test of the complementarity of the court as a concept. Is a case admissible only as long as the government agrees that it is? Or having once agreed, can the country not retract the case? Kenya argues that since it is now possible to guarantee fair trials of the accused they belong in Kenyan courts. Kenya also argues that its government rejected an overwhelming (“near-unaminous” in its argument to the court) vote of the parliament to withdraw from the ICC. The government has withstood the popular sentiment so far, but apparently fears for its stability if this issue is not resolved.
The ICC has been in existence since 2002, none of these issues have come up before and it is not clear what the court will do with the cases. It seems likely the court would seek to defend its turf and find that if the case was admissible when submitted to the chamber, it remains admissible even if conditions in the country where the incidents occurred has changed and can now prosecute. If so, would Uganda be able to withdraw the indictments against its rebels who later join with the government? There are many questions to be answered in this case.