This past week, Kenya’s President Uhuru Kenyatta and Deputy President William Ruto took their battle to the Assembly of State Parties of the International Criminal Court.

What they propose — through the Kenyan state, with the backing of the African Union — is amendments to the Rome Statute itself as well as to its subsidiary rules.

Some of the proposed amendments to the Rome Statute are, in principle, fine. However, some proposed amendments seek to align the Rome Statute with a proposed amendment to its subsidiary rules.

An example here is the proposal to relax the rules that require presence at trial of accused persons. Whether this is necessary, given recent rulings by relevant Chambers, is questionable. Chambers in respect of both the Kenyatta and Ruto trials have already demonstrated what is, quite frankly, remarkable flexibility.

To the point, in fact, of farce. The ICC is the only criminal jurisdiction in the world that allows those suspected of involvement in mass murder to run around freely, potentially influencing their cases given their likely status.

Totally unacceptable is the proposed amendment to exempt serving heads of state from trial during their terms of office. This is nothing but a call for impunity. It goes against the letter and spirit of the Rome Statute.

What is likely to happen?

Fortunately, it appears that it will be more difficult to pass proposed amendments to the Rome Statute itself than it will be to pass proposed amendments to the rules. The procedures for the latter are less onerous.

And, with all the handwringing in the West in response to this recent Kenyan and African belligerence, some sort of appeasement is to be expected. One only wishes this sort of Kenyan and African belligerence would be brought to bear on matters of more actual import to Kenyans and other Africans, who know only too well what impunity has cost — and continues to cost.

Perhaps that knowledge underlies the results of Ipsos Synovate’s latest opinion poll. The poll found that, given the recent ruling on not having to be present in person all the time, 67 per cent of Kenyans believe Kenyatta should attend his trial — with only 25 per cent believing he should abscond.

Some 42 per cent believed the ICC trials should continue as they are, with another nine per cent believing they should continue without the requirement for continuous presence. That makes for a total of 51 per cent who believe the ICC trials should continue — well above the 30 per cent who want the ICC trials dropped.

Why do those who support continuation do so? Most — 40 per cent — believe the ICC is the most certain way for the victims to obtain justice. A further 24 per cent do not trust the Kenyan courts. And 23 per cent believe the ICC will help end impunity.

What this tells us — as though we did not already know — is that Kenyatta, Ruto, the Kenyan state and the AU are simply not in step with sentiments within Kenya as a whol The country is simply not with them. 

L. Muthoni Wanyeki is doing her postgraduate studies at the School of Oriental and African Studies (SOAS) in London.