Kenyan MPs have voted in favour of leaving the International Criminal Court (ICC). The vote in the Kenyan National Assembly came just before the trials of President Uhuru Kenyatta and Deputy President William Ruto in the ICC for crimes against humanity. They are accused of having orchestrated the post-election violence in Kenya in 2007 and 2008. The motion was introduced by majority leader Aden Duale who gave reasons for withdrawing from the ICC that included defending Kenyan sovereignty as well as protecting Kenyan citizens. Withdrawing from an international treaty in this way and in this context could potentially damage Kenya’s reputation as a country that respects international law and human rights, and provoke some unease among investors looking to invest in Kenya. However, the prosecutions of the Kenyan President and Deputy President also prompted an extraordinary session of the African Union last weekend on “Africa’s relationship with the International Criminal Court” which raises the possibility of the relationship of the ICC with African Union nations being redefined altogether.

Background

On Thursday 5 September 2013, after four hours of debate, the Kenyan National Assembly voted in favour of withdrawing from the Rome Statute of the International Criminal Court (the Rome Statute). This vote comes in the context of the prosecutions against President Uhuru Kenyatta and Deputy President William Ruto by the ICC. MPs from the opposition Coalition for Reforms and Democracy led by former Prime Minister Raila Odinga are reported to have walked out of the debate.

The motion voted on by Kenyan MPs also contains a provision that the Kenyan National Assembly will introduce a bill to repeal the International Crimes Act (No 16 of 2008). The International Crimes Act is the Kenyan legislation implementing the provisions of the Rome Statute and was introduced to enable Kenya to co-operate with the ICC. The motion emphasises the fact that the President and Deputy President were lawfully elected and that Kenya now has a new constitution.

Mr Ruto and Mr Kenyatta are both charged as indirect co-perpetrators of crimes against humanity pursuant to article 25(3)(a) of the Rome Statute. A commission was set up to investigate the violence and recommended that the ICC should take over the matter if tribunals were not set up in Kenya. On 31 March 2010, the ICC commenced its investigation bringing charges against the President, Deputy President and Joshua Arap Sang, a radio journalist in Nairobi (who is accused of having incited violence on his radio show).

Mr Ruto’s trial began on Tuesday 10 September 2013 and Mr Kenyatta’s will begin on November 12 2013. Both have been cooperating with the ICC process.

An added controversy surrounding the trials is the recently unsealed ICC arrest warrant for Walter Osapiri Barasa. He is accused of “corruptly influencing” or “attempting to corruptly influence” three prosecution witnesses in the context of the Kenyan cases currently before the ICC.

Although the Kenyan National Assembly has voted in favour of withdrawing from the ICC, it appears that it is the Kenyan government that must undertake measures to withdraw from the Rome Statute. It is unclear whether the Kenyan government will heed the vote in the National Assembly or indeed whether it is required to do so. The Kenyan Senate debated the proposal on 10 September 2013.

It has been reported that Mr Duale has now announced that the bill to repeal the International Crimes Act will be brought before the National Assembly this week.

The position of the African Union in relation to the ICC

The ICC has been alleged by some to have focused only on bringing prosecutions against African leaders, with the Chairman of the African Union, Mr Haile Mariam Desalegn, who is also the Ethiopian Prime Minister quoted as saying that ICC prosecutions “have degenerated into some kind of race hunt”. Mr Kenyatta and Mr Ruto both portrayed the ICC prosecutions as foreign interference in their March 2013 election campaigns and Kenyan support for the prosecutions is reported to have dwindled.

African Union leaders met at an extraordinary session of the Assembly of the African Union on 11 – 12 October 2013 to discuss “Africa’s relationship with the International Criminal Court”.

The press release issued on 12 October 2013 records the following decision reached by the Assembly:

“No charges shall be commenced or continued before any international court or tribunal against any serving head of state or Government or anybody acting in such capacity during his/ her term of office. To safeguard the constitutional order, stability and integrity of member states, no serving AU Head of State or Government or anybody acting or entitled to act in such a capacity, shall be required to appear before any international court or tribunal during their term of office”.

It was also recorded that the African Union would engage with the United Nations Security Council in relation to the concerns of African Union member states on membership to the ICC and raise the question of deferring the Kenyan (and Sudanese) prosecutions before the trial of the Kenyan President commences at the ICC on 12 November 2013. Press reports suggest that this engagement is already underway.

A proposal was reportedly put to the Assembly that African nations should withdraw from the ICC altogether but was not carried at the Assembly. Furthermore, Mr Desalegn stated that “our goal is not and should not be a crusade against the ICC, but a solemn call for the organization to take Africa’s concerns seriously”. The press release of 12 October 2013 noted that this should help “quash rumours that had been circulating that the Assembly meeting had been planned to prepare for a mass withdrawal of African Union member states from the ICC”.

The Kenyan Deputy President has continued to appear in court this week in the Hague.

Legality and process of withdrawing from the ICC and treaties more generally

The ICC was established by the Rome Statute of the International Criminal Court (the “Rome Statute”). Article 127 of the Rome Statute provides that parties can withdraw by submitting a written notification to the Secretary-General of the United Nations. As noted above, it would be the Kenyan government, rather than the Kenyan National Assembly, that would submit the written notification. The withdrawal then takes effect one year after the receipt of the notification. Withdrawing from the Rome Statute does not discharge a party from its obligations previously incurred under the Rome Statute and the party is required to continue assisting with criminal investigations and proceedings started before the withdrawal became effective.

This position is consistent with the Vienna Convention on the Law of Treaties which provides that, unless the treaty provides or the parties otherwise agree, the termination of a treaty does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination (Article 70(1)b).

Conclusion

Kenya has to date cooperated with the ICC but recent events could indicate a change of policy in this respect. Such a change in policy could be detrimental to Kenya in terms of attracting future investors because of the reputational damage that such a move could cause. However, the recent African Union session is a further indication of the concerns regarding this issue across the continent and increased coordination of approach by way of response.

For further information, please contact Andrew Cannon, Senior Associate, or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Senior Associate
+44 20 7466 2852