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Kenya withdrawing from ICC is an absurd decision

Saturday September 14 2013

Members of Parliament belonging to the ruling coalition recently used their majority to pass a motion to withdraw Kenya from the Rome Statute that created the International Criminal Court.

The reasons advanced were:

1) To protect Kenyans from being prosecuted in a foreign court in future;

2) Kenya’s sovereignty is being undermined by the ICC trial of three Kenyans;

3) The ICC trial is pursuing a political agenda on behalf of key opposition figures; and

4) The ICC is a neo-colonial court set up and controlled by Europe. These reasons defy both logic and truth, much like most political action since Independence.

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Many MPs argued that their action was informed by their patriotic duty to ensure Kenyans are not tried by a foreign court in future. They cited countries that refused to join the ICC in order to protect their citizens.

This argument is defective for it implies that the ICC decides on its own to hunt down this or that individual. In fact, the ICC deals with cases referred to it by the states themselves. So even without withdrawing, Kenya can protect its citizens by not inviting the ICC, or better still, by eliminating large-scale violence.

In other words, the ICC would never have come to Kenya if the cases had not been referred to it, and if the politically instigated violence of 2007/8 had not taken place.

But withdrawal is not even a guarantee that no Kenyan will ever be tried at The Hague. There are circumstances that would cause the UN to refer individuals to the ICC irrespective of whether their countries are members.

Also, the motivation to sign an international treaty should be undertaken purely on the basis of whether it advances our interests, and not because this or that country has also signed.

If we are withdrawing from the ICC because some countries are not members, then we should rejoin in the event that these countries in future become members.

The sovereignty argument was the knee-jerk reaction by many post-colonial dictatorships when criticised for human-rights violations. The logical and moral absurdity of this argument would be demonstrated in 1979 when Tanzania invaded Uganda to oust the tyrant Idi Amin.

The OAU denounced the action as violating the sovereignty of Uganda. Yet Idi Amin’s murder of thousands of citizens was not!

Sovereignty, as Kenya’s Constitution says, resides in the people. If Kenya’s political class wants to protect our sovereignty, it should cease inciting citizens to kill each other in order to protect its wealth and privileges.

The argument that the ICC is acting on behalf of local politicians is lame in the extreme. Philip Waki, the judge who headed the Commission of Inquiry into the Post-Election Violence, handed an envelope containing six names to Kofi Annan, who was to hand it over to the ICC Prosecutor in the event Kenya failed to set up a credible local tribunal to try suspects.

Parliament, despite desperate persuasion by president Mwai Kibaki and prime minister Raila Odinga, failed to set up a local process, singing in unison: Don’t be Vague, Go for the Hague.

The idea that Europe’s motivation in its relations with Africa is to keep the continent poor is a lie fabricated by the post-colonial dictatorships. All studies on Africa’s underdevelopment consistently point to poor leadership as the cause of that condition.

In fact, it is in Europe’s interests to have a rich and developed continent — a market for their goods, a source of technological innovation and an actor in solving international problems.

For example, the rise of Asia has been good for everyone, including Europe.

These arguments aside, membership of the ICC is a national commitment, and withdrawing cannot be a result of partisan action. Further, an action such as this must have the aim of enhancing the goals of the Constitution.

Will withdrawal strengthen Kenya’s commitment to international norms on protection of human rights?

A political party, in pursuit of its own interests, cannot make decisions on national commitments that have a bearing on the Constitution. Such decisions can only be effected by referendum.

Tee Ngugi is a social and political commentator based in Nairobi

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