After the Kenyan parliament failed last year to form a special tribunal to try those suspected of bearing the greatest responsibility for post-election violence in 2007-2008, the International Criminal Court (ICC) was called in by the government. Some months later, its role has elicited debate.
An estimated 600,000 people fled their homes during the weeks of violence that followed the announcement of election results and more than 1,000 died. According to the UN Office for the Coordination of Humanitarian Affairs, at least 31,000 displaced people have yet to be resettled.
The Court has since named six prominent Kenyans and is evaluating the prosecutor's request to charge them. Established by the Rome Statute on 1 July 2002, the ICC has also conducted investigations in the Democratic Republic of Congo, Uganda, Central African Republic, Kenya and Sudan, and issued 13 arrest warrants in eight cases.
But some members of parliament are planning a motion for Kenya to withdraw from the ICC altogether. On 18 January, a campaign dubbed “Yes to ICC” was launched in Nairobi; four days earlier, a public debate was held where the pros and cons of ICC involvement generated heated discussion.
The panelists were researchers David Hoile and Stephen Morris from the United Kingdom, and Godfrey Musila and Myango Oloo from Kenya. The debate was moderated by Farah Maalim, deputy speaker of Kenya's parliament. Below are some of the key arguments raised:
Listen to Henry Maina of Article 19 on justice for Kenya's post-election crimes
In support of the ICC:
- The ICC was called in because the Kenyan parliament failed to endorse the creation of a local tribunal;
- The independence of Kenya's judiciary is questionable due to reported political influence and bribery. “Everybody knows how easy it is to pay to get rid of a fine after being caught without a seatbelt in a matatu [taxi]," said Oloo;
- The ICC could be a catalyst to institutional reforms that could address other crucial issues regarding Kenya's future, including poverty, inequality and education, Musila, an international criminal law expert, said;
- The Court could discourage impunity during the 2012 presidential elections. “If we have peace and a judicial process on its way, people would at least know that the question of justice is being looked at,” added Oloo;
- By targeting Kenyan politicians, the ICC will discourage them from taking decisions that favour themselves.
Against the ICC:
- The ICC’s presence in Kenya is a sign that the country's national justice system is incompetent. To Morris, it would be better to develop Kenya's own institutions without giving up sovereignty;
- The ICC’s actions in Sudan and the Democratic Republic of Congo have so far not delivered reparations to victims. “Who is going to give the survivors justice? The ICC, miles away, using their own criteria? It’s better to clean your own mess,” Morris said;
- The court's legitimacy is questionable because it represents fewer than half the countries in the world and depends on the UN Security Council to define war crimes. “Almost 60 percent of the ICC’s budget comes from the European Union. War crime perpetrators have not been charged in Iraq or Afghanistan," said Hoile, author of a number of publications on African affairs;
- The ICC could weaken Kenya's judicial institutions. “That is sub-prime justice... it can lead to a crisis if it is not properly addressed by each country with its own judicial system,” Hoile said;
- Going for the ICC is giving up an opportunity for Kenyans to choose how to handle the matter. "It’s a political and judicial price to pay, but Kenya has to make its choice by itself and decide how it wants peace and at which cost," said Hoile.