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| Prof. Tom Zwart |
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| Prof. G.J Alexander Knoops |
In April
the newly elected Kenyan President, Uhuru Kenyatta, was sworn in during a
public ceremony in Nairobi. While many African states, as well as countries
like China and Russia were represented at the highest level, Western states had
deliberately sent only lower ranking officials. The reason was that President
Kenyatta has been indicted by the International Criminal Court (ICC). He is
accused of having committed crimes against humanity by playing a role in
orchestrating the violence after the 2007 elections.
This lowkey
presence amounts to a denial of the presumption of innocence. After all, at
this stage President Kenyatta is only a defendant and therefore entitled to be
presumed innocent until proven guilty. By comparison, when the American
President Bill Clinton was impeached for high crimes and misdemeanours in 1998,
Western states did not scale down their contacts with the Administration, nor did
they have to. Therefore, one cannot blame African observers for believing that
a double standard is being applied here.
The
presidential elections in Kenya turned into a referendum on the ICC, which
emerged with a bloody nose. The Court has undoubtedly itself contributed to
this state of affairs. It had several means at its disposal to prevent this
clash, but it proved unwilling to use them.
Firstly,
President Museveni, who spoke during the inaugural, observed that the case
against Kenyatta should have been dealt with at the national level. There is
strong support for this position even at the Court itself. In a dissenting
opinion to the decision to charge Kenyatta and his co-defendants, Judge Hans
Peter Kaul indicated that the violence committed in 2007 did not amount to
crimes against humanity. Therefore, the Court lacked jurisdiction to try the
case, which instead should have been prosecuted before an ordinary Kenyan
criminal court. The majority of the Pre-Trial Chamber, however, decided to continue
with the case regardless.
Secondly,
highly charged cases like this, in which it is difficult to prove the facts and
to determine who is most responsible, can best be settled with a plea deal.
President Kenyatta could express regret for his failure to prevent loss of life
after the 2007 elections, in exchange for the charges to be dropped. Although
other international tribunals resort to plea-bargaining to facilitate
reconciliation, the ICC has not yet done so, probably because it believes that
it should be above such ‘horse-trading’. However, in the Kenyatta case, such an
agreement would not only allow it to give Kenyatta a slap on the wrist, but
also to invest in its standing in the region.
By not
seizing these opportunities until now, the Court has done itself a disservice.
Opposing the Court has become a way for Africans to assert their independence
from the West, which is boosted by impressive growth figures and closer
relations with China. During the ceremony President Museveni indicated that he too
is losing patience with the Court. His critical remarks are a telling sign that
the tide is turning. In 2003, he breathed life into the ICC by agreeing to
refer the first much needed case to it. Now, the time has come to ‘reset’ the
relationship between Africa and the ICC. This can be done by taking two
important steps.
Firstly, as
President Museveni rightly pointed out, the ICC is being driven by legalism, i.e. the idea that its work should be
determined entirely by law without taking the political context on board.
Interestingly, since the Rome Statute does not prescribe legalism, the decision
not to engage in politics is by itself political. The idea that the Court
operates on a strict diet of pure law is a myth, which is rightly met with scepticism
in Africa. Therefore, Africans tend to see the ICC for what it is, a political
actor, and they treat it that way. To maintain its legitimacy the Court should
therefore acknowledge this political dimension to its work.
Secondly,
in his inaugural address President Kenyatta made clear that no one country or
group of countries should have control or monopoly on international
institutions or the interpretation of treaties. The ICC does little to honour
the African sense of justice, although the Rome Statute allows it to apply
African criminal law notions like restorative justice, reconciliation, and
peace as an integral part of justice, as well as respect for local culture. If
the Court succeeds in showing that it takes these elements of African justice
seriously, its legitimacy will increase, and so will the compliance with its
rulings.
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| Uhuru Kenyatta (Left) shakes President Museveni hand at President Kenyatta's Inauguration |
President
Kenyatta’s observations are reflected in an initiative, taken by legal
academics form Africa and elsewhere, which is aimed at combining more respect
for African justice on the part of the ICC with increased cooperation on the
African side. It is important that both sides soon endorse this initiative, led
by professors Laurence Juma from Rhodes University and Tom Zwart from Utrecht
University, before irreparable damage occurs.
Guest Post by Alexander
Knoops & Tom Zwart
Alexander
Knoops is a Professor of International Criminal Law at Utrecht University; Tom
Zwart is a Professor of Human Rights at Utrecht University.
