Monday, September 9, 2013

Consequences of withdrawing from the ICC

By Lukoye Atwoli
Sunday Nation 08 September 2013

The past few days have seen frantic activity for the top echelons of our government. At the top of the executive arm of government, the nation’s leaders are due to appear at the International Criminal Court at The Hague to answer charges related to crimes against humanity. Legal and political decisions have to be made to safeguard their best interests in these difficult times, and one could imagine the frenzy of activity on multiple fronts that is needed just to maintain the status quo.

Happily for Kenya, since their election the president and his deputy have never suggested that the trials at The Hague are state affairs. During the campaign, the president indicated that the case is just a personal matter that he will continue handling at that level even after occupying State House. The deputy president, on his part, assured the ICC, “without fear of contradiction,” that he would continue to cooperate with the court even if he is elected into office.

Amazingly, though, our parliament has just realised that the ICC is an imperial structure and that Kenya must withdraw from its jurisdiction as soon as it is practicable. Despite their vehement denials, the move is obviously informed by the predicament facing the president and his deputy. Members of Parliament are fulminating about our sovereignty and the unconstitutional gap in the executive should the two leaders happen to be away at the same time.

It is general knowledge that no matter what decision is made by our parliament or any other body, the cases facing our national leaders will only be won or lost at The Hague. No amount of pontificating and threatening will terminate the cases outside of the legal processes provided for in the relevant statutes.

There is only one cause to worry, and this touches on the implications of a decision by Kenya’s parliament to repeal the International Crimes Act and withdraw from the Rome Statute.

Any decision made by parliament at this time will only apply to future possible cases of crimes against humanity and related cases. What this means is that if in future Kenyans decide to go berserk and butcher each other again on the same scale as we saw in 2008, there will be nowhere to turn.

Withdrawal from the Rome Statute will mean that when the current politicians are voted out of office, and we, in our wisdom, elect a bloodthirsty kleptomaniac to be our leader, there will be no safe haven for them if this leader decides to hound them because he doesn’t like how they roll their R’s. With our weak judicial systems and lack of legislative oversight over the executive, this is not a far-fetched scenario.

It will therefore behove our political leaders to think more seriously about the decisions they are making today, keeping in mind that some of them are already suffering the consequences of the decisions they took before dissolution of the last parliament. Many current senators, who were in the last parliament, short-sightedly voted to emasculate the Senate, and are now crying bitterly about the depleted roles the organ now has.

Removing ourselves from the jurisdiction of the ICC at this time is a risky venture, even to the governing elite themselves. As the song goes, life has a funny way of sneaking up on you when you think everything is alright!

Dr Lukoye Atwoli is a consultant psychiatrist and senior lecturer at Moi University’s School of Medicine.; Twitter @LukoyeAtwoli

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