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g. Kenya and Africa
My next vignette dealt with the Kenya case and the African Union (AU)’s reaction to the ICC, focusing exclusively on Africa, and in particular, the ICC efforts to prosecute sitting Heads of State. Kenya has had a long history of election violence.[1] On 30 December 2007, following the announcement of the Kenyan election results, large-scale political violence broke out amid claims that the electoral commission of Kenya had rigged the elections in favor of incumbent Mwai Kibaki.[2] Two months of bloodshed between the two rival coalitions (Ralia Odigna’s Orange Democratic Movement [“ODP”] and Mwai Kibaki’s Government/Party for National Unity [“PNU”]) left an estimated 1,000 people dead, and as many as 500,000 internally displaced persons.[3] In the midst of the violence, former UN Secretary General Kofi Annan received a call from President Kufor of Ghana, then Chairman of the AU, asking Kofi Annan to mediate the crisis in Kenya.[4] Kofi Annan led the Panel of African Eminent Personalities through 41 days of mediation and the political violence ended upon the two parties signing a peace agreement: The Agreement on the Principles of Partnership of the Coalition Government.[5] On 4 March 2008, the parties agreed to form two fact-finding commissions: the Independent Review Committee and the Commission of Inquiry on Post-Election Violence (CIPEV).[6] The CIPEV made a number of recommendations to the government, and findings were presented to Kofi Annan, the appointing authority for the commission.[7] The CIPEV recommended investigation, and eventual prosecution of certain persons alleged to have masterminded the violence and recommended that a Special Tribunal adjudicate serious crimes: particularly, crimes against humanity.[8] 
The names were placed in a secret envelope and were kept with the Panel led by Kofi Annan and pending the establishment of a Special Tribunal.[9] If the government failed to establish the Tribunal, the Panel would forward the names of the perpetrators to the ICC.[10] The Kenyan parliament failed—due to political stalemate[11]—to establish the Tribunal and Kofi Annan handed over the sealed envelope to the ICC Chief Prosecutor, Luis Moreno-Ocampo.[12]
On 31 March 2010, the ICC Pre-Trial Chamber II granted Ocampo’s request to open an investigation proprio motu in Kenya.[13] The Office of the Prosecutor initiated proceedings in two cases against six individuals: three PNU/government leaders (Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali) and three prominent ODP leaders (William Samoei Ruto, Henry Kirpono Kosgey and Joshua Arap Sang).[14] Kenya had ratified the Rome Statute in 2005,[15] but to add an interesting twist on the events, facing prosecution at the ICC, Kenyatta and Ruto—former political enemies—teamed up to win the May 2013 Kenyan presidential elections, with Kenyatta winning the Presidency and Ruto the Deputy Presidency.[16] Both Kenyatta and Ruto appeared voluntarily in The Hague, yet neither were in custody and remained under summons to appear on their own recognizance.[17]
The Kenyan government solicited demands from the AU in order to put political pressure on the ICC to defer the Ruto and Kenyatta cases.[18] On 12 October 2013, the African Union held an Extraordinary Session to address the Kenya situation.[19] During the session there were talks of an en masse AU walkout, although nothing resulted.[20] However, the African Union agreed to back immunity for sitting African Heads of State, and recommended that Kenya write to the UN Security Council to seek a deferral of the two cases.[21] On 21 October 2013, the Kenyan government sought a decision from the Security Council to defer the case.[22] On 15 November 2013, Azerbaijan, Burundi, Ethiopia, Gabon, Ghana, Kenya, Mauritania, Mauritius, Morocco, Namibia, Rwanda, Senegal, Togo and Uganda proposed a draft resolution in the Security Council that would defer the two cases.[23] No country voted against the draft resolution, however, it was not adopted, having failed to obtain the required number of votes.[24] When these methods failed, Kenya pleaded to members of the ICC Assembly of States Parties (of which African States constitute a large block) to change the rules.[25] On 27 November 2013, the Assembly of States Parties introduced amendments to Rule 134 of the ICC Rules of Procedure and Evidence, which allows for presence at trial via video technology, excusal from presence at trial for exceptional circumstances, and excusal from presence at trial due to extraordinary public duties.[26]
The African Union already had a shaky relationship with the ICC, with sentiments of neo-colonialism for focusing its investigations in Africa (although only two of the eight African cases were initiated by the Prosecutor proprio motu, with two by Security Council referral, and the remaining four being self-referrals from AU member States).[27] The language used in the Decision of the Extraordinary Session is particularly telling:
[The AU] REITERATES AU’s concern on the politicization and misuse of indictments against African leaders by ICC as well as at the unprecedented indictments of and proceedings against the sitting President and Deputy President of Kenya in light of the recent developments in that country.[28]
The ICC’s issues with the AU are not limited to the Kenyan situation. In 2003, Ugandan President Yoweri Museveni referred the situation concerning the Lord’s Resistance Army (LRA) to the Prosecutor of the ICC.[29] However, as peace negotiations with the Ugandan government and the LRA moved forward, President Museveni had a change of heart towards the ICC. While addressing journalists at the Commonwealth Secretariat at Marlborough House in London, Museveni remarked that:
The government [of Uganda] can save LRA leader Joseph Kony and his co-accused from prosecution by the International Criminal Court (ICC) . . . We can save him because we are the ones who sought assistance from the ICC . . . because he was not under our jurisdiction, we sought assistance from the ICC . . . [But] if he signs the peace agreement and returns to our jurisdiction, it becomes our responsibility not any other’s: including the ICC . . . the government [of Uganda] sought ICC’s assistance because Kony had fled to the [Democratic Republic of] Congo . . . the ICC intereve[s] . . . in case of impunity or if governments are unable or unwilling to punish those involved in crimes against humanity . . . the situation in Uganda after the peace agreement will be different.[30]
A similar experience occurred with Côte d’Ivoire. Côte d’Ivoire accepted the jurisdiction of the ICC on 18 April 2003.[31] More recently, on 14 December 2010, newly elected President Alassane Ouattara reconfirmed the country’s acceptance of this jurisdiction, satisfied that his political opponent, and former president, Laurent Gbagbo would be sent to The Hague to face charges of crimes against humanity.[32] However, Ouattara has become less keen on the ICC, as the ICC could expand investigations to cover alleged crimes committed by his own allies.[33] Similarly, in the Situation in Darfur, after the ICC issued the arrest warrant[34] for Sudanese President Omar Al-Bashir for alleged genocide in Darfur, the African Union sought to defer the case:
[The African Union] STRESSES the need to explore ways and means to ensure that the request by the African Union (AU) to the United Nations (UN) Security Council to defer the proceedings initiated against President Bashir of The Sudan in accordance with Article 16 of the Rome Statute of ICC on deferral of cases by the UN Security Council, be acted upon and, in this regard, REITERATES its request to the UN Security Council and REQUESTS African members of the UN Security Council to place the matter on the agenda of the Council.[35]
Notwithstanding the problems with the AU, the ICC Prosecutor has had numerous complications with the two Kenya cases. The ICC declined to confirm charges against two suspects (Ali and Kosgey)[36] and the current Chief Prosecutor, Fatou Bensouda dropped charges against a third accused, Muthaura.[37] Bensouda alleged that the Government of Kenya failed to cooperate, and that several witnesses have either died or have recanted their testimony.[38] One of the Prosecutor’s key witnesses also admitted that he accepted bribes.[39] On 23 January 2014, the trial scheduled for February 2014 against Kenyatta was vacated with a status conference to follow addressing the various procedural issues.[40]
This is the first case in the ICC where a sitting Head of State is being prosecuted. Actually, both the President and Deputy President were scheduled to be tried more or less during the same period, thus leaving a political vacuum in Kenya – at the highest level. However, should the blame rest with Kenyatta for not cooperating as alleged by the ICC Prosecution? Or should it rest with the ICC Office of the Prosecutor, which, by and large, seems incapable of effectively carrying out its duties and responsibilities? To what extent the Kenya cases, and in particular the Kenyatta case, may have impacted on the reputation of the ICC remains to be seen. Suffice it to say, the ICC foundations have been shaken. And had the ICC Prosecutor pursued the prosecution of Kenyatta, and had it resulted in an acquittal – which seemed all but certain given the dearth of credible evidence against Kenyatta, the ICC Prosecutor would have assuredly brought the ICC into disrepute.
There are also greater geo-political concerns. If trials were to commence against the two accused Heads of State, who is going to run the government of Kenya? Is it possible for a State government to manage the country while its two Heads are out of the country? The attacks on the Westgate mall in Kenya in September 2013 demonstrate the threats to Kenya, as well as to regional security. Further, Kenya is a key US ally in fighting the Al-Shabaab terrorist organization in East Africa.[41] Do we really want Kenya to be without its executive while terrorist organizations continue to dismantle regional security? Although everyone seems to agree that perpetrators of crimes should not enjoy impunity or immunity due to their official capacities, a real dilemma exists when removing such leaders could create a power vacuum or contribute to further regional instability. The Kenyan cases certainly demonstrate the complex practical difficulties the facing the Court. It also highlights the weaknesses of the ICC Office of the Prosecutor, no doubt giving pause to some countries that are considering why it might be in their best interests to give jurisdiction over to the ICC.
[1] Human Rights Watch, Ballots to Bullets, Organized Violence and Kenya’s Crisis of Government, Human Rights Watch, Volume 20, No. 1(a), 11 (March 2008).
[2] Kenyan Independent Review Committee (IREC) and Commission of Inquiry on Post-Election Violence (CIPEV), The Kriegler and Waki Reports on 2007 Elections, Summarized Version viii (Rev. ed 2009) (“Kriegler and Waki Reports”).
[3] Human Rights Watch, Ballots to Bullets, Organized Violence and Kenya’s Crisis of Government, Human Rights Watch, Volume 20, No. 1(a), 11 (March 2008).
[4] Kofi Annan, Kofi Annan’s Opening Remarks at The National Dialogue and Reconciliation Conference: One Year Later, Kofi Annan Foundation (March 2009), available at https://www.kofiannanfoundation.org/speeches/kofi-annans-opening-remarks-at-the-kenya-national-dialogue-and-reconciliation-conference-one-year-later/. Other prominent individuals who visited Kenya with a view to broker peace included former Presidents Ahmad Tejan Kabbahof Sierra Leone, Benjamin Mkapa of Tanzania, Ketumile Masire of Botswana and Kenneth Kaunda of Zambia. Others included Archbishop Desmond Tutu of South Africa and the then Assistant Secretary of State for Africa, Jendayi Fraser. See Report of the Kenya Truth, Justice and Reconciliation Commission (TJRC), Volume I, ISBN: 987-9966-1730-3-4 (2013) (“Kenya TJRC Report”).
[5] Kenya TJRC Report; Agreement on the Principles of Partnership of the Coalition Government between the Orange Democratic Movement and the Kabiki Government (28 February 2008), available at http://rescuekenya.files.wordpress.com/2008/03/annan-mediated-agreement-v-2-3.pdf.
[6] The Kriegler and Waki Reports on 2007 Elections, Summarized Version viii (Rev. ed 2009). The IREC investigated all aspects of the 2007 presidential election and made findings and recommendations to improve the electoral process. The CIPEV investigated facts and surrounding circumstances related to the violence that followed the elections and made recommendations to prevent the recurrence of violence in the future.
[7] Id. at 69.
[8] Id. at 69–70.
[9] Id. at 69.
[10] Id.
[11] Id.
[12] Report of the Kenya Truth, Justice and Reconciliation Commission (TJRC), Volume I, ISBN: 987-9966-1730-3-4 (2013).
[13] Situation in the Republic of Kenya, ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (31 March 2010).
[14] Situation in the Republic of Kenya, ICC-01/09, Prosecutor’s Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (15 December 2010); Situation in the Republic of Kenya, ICC-01/09, Prosecutor’s Application Pursuant to Article 58 as to William Samoei Ruto, Henry Kirpono Kosgey and Joshua Arap Sang (15 December 2010).
[15] U.N. Treaty Collection, Rome Statute of the International Criminal Court, Ratifications and Signatories, (last visited 10 March 2014), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en.
[16] Prosecutor v. Ruto and Sang, ICC-01/09-01/11, Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial (18 June 2013), paras 8, 9.
[17] Prosecutor v. Kenyatta, Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, ICC-01/09-02/11 (18 October 2013), para. 9.
[18] African Union, Decision on Africa’s Relationship with the International Criminal Court (ICC), Extraordinary Session of the Assembly of the African Union, Ext/Assembly/AU/Dec.1 (Addis Ababa, 12 October 2013) (“2013 AU Kenya Decision”); BBC News Africa, African Union Urges ICC to Defer Uhuru Kenyatta Case, BBC.org (12 October 2013), http://www.bbc.com/news/world-africa-24506006.
[19] 2013 AU Kenya Decision.
[20] Michael Pezzi, African Union floats ICC Walkout after Kenyatta Asks for Case to be Tossed, Al Jazeera, 10 October 2013, available at http://america.aljazeera.com/articles/2013/10/10/kenyatta-asks-icccasebetossedwhileafricanunionfloatswalkout.html.
[21] 2013 AU Kenya Decision.
[22] U.N. S.C., Identical letters dated 21 October 2013 from the Permanent Representative of Kenya to the United Nations addressed to the Secretary-General and the President of the Security Council, U.N. Doc. S/2013/624 (22 October 2013).
[23] S.C. Draft Resolution 660, U.N. Doc. S/2013/660 (15 November 2013).
[24] S.C. Provisional Res. 7060, U.N. Doc. S/PV.7060 (15 November 2013). In favor of the resolution were Azerbaijan, China, Morocco, Pakistan, Russian, Federation, Rwanda, Togo. None were against. Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, United Kingdom of Great Britain and Northern Ireland, and the United States of America abstained.
[25] Kenneth Roth, Africa Attacks the International Criminal Court, N.Y. Books, 6 February 2014, available at http://www.nybooks.com/articles/archives/2014/feb/06/africa-attacks-international-criminal-court/.
[26] ICC Assembly of States Parties, Resolution ICC-ASP/12/Res.7 (27 November 2013), Rules 134bis–quater.
[27] The Situations in Mali, Central African Republic, Uganda, and the Democratic Republic of Congo were all self-referrals. The investigations in Darfur and Libya were initiated by Security Council referral, while investigations in the situations in Côte d’Ivoire and Kenya were opened by the prosecutor proprio motu. See ICC Situations and Cases, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx (last visited 10 March 2014).
[28] 2013 AU Kenya Decision.
[29] ICC Press Release, President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC, ICC-20040129-44 (29 January 2004), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/2004/Pages/president%20of%20uganda%20refers%20situation%20concerning%20the%20lord_s%20resistance%20army%20_lra_%20to%20the%20icc.aspx.
[30] New Vision (Uganda), We Can Save Kony—President Museveni, New Vision (11 March 2008), available at http://www.newvision.co.ug/PA/8/12/616057.
[31] Republic of Côte d’Ivoire, Déclaration de reconnaissance de la Compétence de la Cour Pénale (Abidjan, 18 April 2003), available at http://www.icc-cpi.int/NR/rdonlyres/CBE1F16B-5712-4452-87E7-4FDDE5DD70D9/279779/ICDE.pdf; All Africa, Côte d’Ivoire: President Alassane Ouattara Says the International Criminal Court Will Provide a Fair Trial for Former President Laurent Gbagbo, All Africa (9 July 2012), available at http://allafrica.com/stories/201207100433.html.
[32] Republic of Côte d’Ivoire, Letter Confirming Acceptance of Jurisdiction (14 December 2010), available at http://www.icc-cpi.int/NR/rdonlyres/498E8FEB-7A72-4005-A209-C14BA374804F/0/ReconCPI.pdf.
[33] Economist Intelligence Unit, Côte d’Ivoire: Government Under Pressure from ICC, The Economist (3 October 2013), http://country.eiu.com/article.aspx?articleid=1941027578&Country=C%C3%B4te%20d%27Ivoire&topic=Politics&subtopic=Forecast&subsubtopic=Political+stability&u=1&pid=211522205&oid=211522205&uid=1.
[34] Prosecutor v. Al-Bashir, ICC-02/05-01/09, Second Warrant of Arrest for Omar Hassan Ahmad Al-Bashir (12 July 2010).
[35] African Union, Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), Assembly/AU/Dec.397(XVIII) (Addis Ababa, 30 January 2012).
[36] Prosecutor v. Ruto, Sang and Kogsey, ICC-01/09-01/11 Decision of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 138 (23 January 2012); Prosecutor v. Muthaura, Kenyatta and Ali, ICC-01/09-02/11 Decision of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 154 (23 January 2012).
[37] ICC Press Release, Statement by ICC Prosecutor on the Notice to Withdraw Charges against Mr. Muthaura (11 March 2013), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/OTP-statement-11-03-2013.aspx.
[38] Id.
[39] Id.
[40] Prosecutor v. Kenyatta, ICC-01/09-02/11, Order Vacating Trial Date of 5 February 2014, Convening a Status Conference, and Addressing other Procedural Matters (23 January 2014).
[41] Michael Pearson, Zain Verjee and Arwa Damon, Attackers Defeated in Mall siege, Kenya’s President says, CNN, 24 September 2013, available at http://edition.cnn.com/2013/09/24/world/africa/kenya-mall-attack/.
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