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How the ICC became Kenya's 'state enemy'

How did Kenya get to the point of voting to begin the process of withdrawing from the International Criminal Court?
Last modified: 5 Sep 2013 21:23

So Kenya's parliament has passed a motion of intent to pull out of the International Criminal Court (ICC).

It was a heated showdown, pitting the ruling coalition against the opposition. The opposition, however, had no chance: the ruling coalition always had the numbers and it was widely expected that the motion would sail through. 

The move comes just days before the trials of Deputy President William Ruto and his co-accused Joshua Sang are due to begin at the ICC on September 10.

Uhuru Kenyatta, the country's president, will see his historic trial begin in November - historic because he will be the first sitting president to tried at the Hague-based court.

All three have been charged with crimes against humanity during the turbulent post-election period of 2007-08, when 1,300 people were killed and hundreds of thousands displaced in post-election violence following a disputed poll.

It's clear that adopting the motion will not affect the ongoing cases. The process involved in pulling out of the Rome Statute that established the ICC is long and laborious –The UN Security Council needs at least a year's notice from a member country planning to withdraw.

Even in Kenya, Thursday's parliamentary resolution will be followed by a bill seeking to repeal the International Crimes Act. If that bill is passed within 30 days of the original resolution, the president can then sign it into law. It is only once President Kenyatta has signed it that the process of withdrawal actually begins.

Some predict that President Kenyatta may well not sign the bill at all - despite immense pressure from his coalition members to do so - in order not to appear guilty, or possibly harm Kenya's international standing.

So why the frantic push for this motion now?

Analysts say it's all about politics, about making a political statement.

The International Criminal Court and its alleged persecution of Africa's leaders has become a political tool – a very powerful one at that. But parliamentarians say otherwise. 

Adan Duale, a member of parliament who has been lobbying hard for this motion had this to say: "I have no business with the Kenyatta and Ruto cases. We just want to set the pace for Africa to delink itself from that court. We're also just acting in tandem with what African leaders believe in: that this is a political court."

That has been a message continuously sold to the public here. Even back during election campaigning in March this year, the ICC was the glue that held Kenyatta and Ruto together. Their public relations machinery played the issue brilliantly. At the end of it all, the two were seen as victims and many argue that the March vote was in essence a protest against all those "outsiders" who warned of consequences of electing suspects of crimes against humanity.

According to some surveys, support for the ICC has waned significantly in Kenya.

But let's also look back at the history of this stormy relationship between Kenya and the ICC. Way before the International Criminal Court was involved in the cases, even before the list of suspects was made public, there were efforts by the executive to form a local tribunal to try those suspected of bearing the greatest responsibility.

The government tabled a bill to set up this tribunal three times, but each time legislators rejected the proposals. Perhaps this was because the record of previous government commissions has been woeful: lots of pointing fingers, but no actual convictions. The famous slogan back then was: "Don't be vague, say The Hague!"

Even as the political soap opera continues, though, on the sidelines, and quite out of sight, remain the victims of the 2007-08 violence: the families that lost loved ones, their homes and livelihoods,  the women who were raped, the children whose lives were uprooted.

Who is speaking for them? They have never gotten the kind of attention that this case, the ICC and the two men who will be on the dock have received.  

And that's the biggest irony of all.