The AU, ICC and Kenya
Surprising enough, The referral of the 2007-2008 Kenyan post-election violence case to the ICC came, not from imperialists, but from the Panel of Eminent African Personalities established by the African Union — with Kofi Annan as chair and Benjamin Mkapa, former president of Tanzania and Graca Machel, former South African first lady as members. It was the Panel of Eminent African Personalities that was formally mandated by the AU on 29 January, 2008 to mediate between President Kibaki's Party of National Unity (PNU) and Mr. Odinga's Orange Democratic Movement (ODM); the panel was charged with finding a peaceful solution to the crisis. One important outcome of the Panel's work was the referral of the cases of those behind the violence to the ICC.
The western states particularly Britain and the United States at this time attempted to prevent the case form going to The Hague for the reason of ensuring that relations between Western States and Kenya were maintained and not interfered with, especially in regard to international Business. It is also important to note that the United States has not signed the Rome Statute.
From this short excerpt it is clear to see the merry-go- round involved. The case against the two Kenya superiors has caused an outburst from the African States and the International Community has not been left behind. It is important to ensure co-operation between International and regional bodies to avoid such tussles.
One question however remains, what is the situation locally? Parliament already approved a motion to withdraw Kenya from the Rome Statute, despite the controversy that surrounded motion. The procedure to withdraw from the statute has been exclusively set out in Article 127 of the Rome statute. However, it is important to note that legally, withdrawing from the Rome Statute will have no effect on the trials of Mr. Ruto or Mr. Kenyatta.
The process of withdrawing requires the State to give a 12 months' notice by depositing the withdrawal documents with the Secretary General of the United Nations. This withdrawal does not affect the cases that have already commenced in a State that is withdrawing.
It has been stated on several occasions that Kenya's attempt to withdraw from the Rome statute can be rightly assumed to be a purely political move. There is no need to attempt to sugar coat the situation with legal jargon. Kenya being the first state to attempt to withdraw from the Rome statute means that it will be the state that will set precedent for all other states especially African states. It would be hard to determine whether or not other African states will follow suit. Every African state has a different relationship with the Western world; be it socially and especially economically.
The AU officials are in talks with the UN Security Council as earlier planned and although no decisions on the deferral request of the Kenyan cases will be made at that point of discussion, the Security Council is expected to meet again in November to discuss whether to use its power to grant a one-year postponement of the trials of President Uhuru Kenyatta and his deputy.
The bill seeking to withdraw Kenya from the Rome statute is currently being drafted at the Attorney General's office and East Africa Centre for Law and Justice we will be watching keenly to see what the outcome of the said situation will be.
