After Kenyan MPs voted overwhelmingly last month to withdraw from the Rome Statute, the government must now decide whether to act for, or against, accountability.

Thus far, Kenya has shown itself unwilling to investigate and prosecute the violence that almost brought the country to its knees in late 2007 and early 2008.

It was only as a result of that unwillingness that the prosecutor of the International Criminal Court opened an investigation into the crimes.

The prosecutor has completed his investigation and has now asked the court, based in The Hague, to move against six people in two separate cases, asking them to be summoned to court to face charges of crimes against humanity.

The Kenyan parliament has responded by announcing that it will seek to withdraw from the Rome Statute that created the court.

Kenya’s withdrawal from the Rome Statute would not affect the ICC’s capacity to continue acting in relation to the announced investigations.

The withdrawal would demonstrate bad faith and an intention to shield certain persons from prosecution.

It would not strengthen Kenya or Kenyans, but would further entrench impunity and victims’ suffering.

The two announced investigations involve six alleged offenders and nine criminal counts amounting to crimes against humanity.

The named individuals have not been convicted; they are presumed innocent until proven guilty.

Sufficient basis

The Office of the Prosecutor of the ICC considers that it has sufficient grounds to proceed criminally against these six individuals for crimes committed in Kenya between December 2007 and January 2008.

It is now up to a chamber of judges to determine whether there is in fact sufficient basis to allow the cases to move forward.

These are two criminal cases against individuals with the full array of procedural guarantees for each of the alleged offenders. It is not a case against Kenya.

Rather, as a result of insufficient action at the national level, victims’ rights are being vindicated by an international body whose authority Kenya has accepted.

As a party to the Rome Statute, Kenya is obligated to co-operate in good faith with this international body.

Kenya had the opportunity to see justice being done within its borders.

It could have carried out diligent investigations into the crimes perpetrated during the post-electoral period.

The decision by the ICC prosecutor and the resulting proceedings should provide the stimulus for the Kenyan government to demonstrate its national will and capacity to bring other perpetrators responsible for domestic and international crimes to book.

Some Kenyan politicians are claiming that this is another indication of a neo-colonial outlook in international justice that victimizes Africa.

This is dishonest posturing. The Rome Statute that Kenya voluntarily adopted makes clear that The Hague court is a court of last resort.

The ICC will only act if Kenya is unwilling or unable to bring genuine cases before its own courts.

The parliament that rejected the ICC is the same parliament that rejected the possibility of setting up a special tribunal to deal with the post-election violence.

Opposed to accountability

Since Kenya’s parliament has rejected both domestic and international justice measures, Kenyans are entitled to conclude that most members of parliament are opposed to real accountability.  

In respect of the post-election violence, Kenya cannot escape the jurisdiction of the ICC by withdrawing from the Rome Statute.

The treaty is clear — any withdrawal will take effect one year after a state notifies the secretary-general of the United Nations.

Even then a withdrawal would not affect a state’s obligation to co-operate in any criminal investigation or proceeding that was initiated, or in any other matters under the consideration of the court, before the withdrawal came into effect.

Even if Kenya were to withdraw, it would not change the course of action laid out by the Office of the Prosecutor in these two cases.

Kenya squandered its opportunity to address these crimes nationally, but still has the option to work toward accountability under the system of international criminal law that it helped to establish, along with the other states that signed the Rome Statute.

Impunity, however, is not an ethical or legal answer.

Instead of wasting valuable time on misdirected debates and hidden aims, Kenyan authorities should respond to the challenge by demonstrating genuine will and diligent capacity to end impunity in relation to the crimes perpetrated in late 2007 and early 2008.