It is a question of when, not whether, Kenya will pull out of the ICC. But it is also clear that there is some incentive for Nairobi not to withdraw immediately.
Since Burundi announced in October 2016 that it had decided to withdraw from the International Criminal Court’s founding treaty, the Rome Statute, commentators have been busy speculating whether – and if so which – other African State Parties would be next.
The issues raised by African states warrant an ICC review conference.
Few predicted that South Africa would be the first, in fact beating Burundi to the finish line by providing the UN Secretary General with a formal notification. South Africa therefore became the first State ever to issue notification to leave under Article 127 of the Statute.
There has been no shortage of predictions that many other African States would soon join. But so far only The Gambia has made a similar announcement.
Some commentators have noted that most African States Parties – 34 before any of the current withdrawals take effect – are indeed likely to remain within the ICC system. Significantly a substantial number of African countries have come out in strong support of the court in recent weeks.
Even if we are unlikely to witness a mass exodus from the ICC as some predicted, it is clear that a number of African states, Kenya chief among them, are seriously considering joining the exit.
Kenya has a particularly fraught history with the court because of the ICCs decision to prosecute six senior officials and politicians. These include President Uhuru Kenyatta and deputy President William Ruto who were elected while charges were still pending. All the Kenyan cases have since been closed.
Kenya’s President Kenyatta has in the past been one the most vocal voices calling for African states to stage a mass withdrawal. And government officials continue to express serious reservations about the ICC.
Shortly before making the announcement that it was withdrawing, South African President Jacob Zuma met Kenyan leaders in Nairobi, suggesting some form of coordination may have taken place.
Kenyan leaders may believe that withdrawing would provide them with an opportunity to reassert the narrative they so aggressively put forward when the ICC was pursuing charges against President Kenyatta and his deputy, Ruto. The thrust of this is that the Court is biased against Africans and violates the sovereignty of African countries.
However, Kenya might have another card up its sleeve. There is no doubt that Nairobi is seriously considering withdrawing from the court. But recent statements by Kenyan officials suggest the country may first opt to use the threat of doing so as leverage.
Nairobi has an interest in using the withdrawal threat to influence the procedures that will take place following the recent decision to refer Kenya to the ICC’s governing body, the Assembly of State Parties, due to its failure to cooperate in post-election violence related ICC cases.
Nairobi may be tempted to use the threat of withdrawal as a bargaining chip to secure a “better deal” in terms of the outcome of assembly procedures.
The assembly would still be able to consider the case against Kenya even if the country withdrew. But by delaying its decision, Kenya could possibly influence the outcome and avoid being criticised in terms it would find uncomfortable.
In the past both the court itself and other states parties have shown willingness to accommodate Kenya’s demands. A Kenyan withdrawal would frustrate European capitals and they may be willing to settle on a compromise at the ASP in an attempt to keep Kenya in and to avoid jeopardising the “cosy” relationship they now enjoy.
Other outstanding issues
There are a number of other issues that will affect any decision that Nairobi might make about withdrawing.
The first is that Kenya remains uncomfortable with the fact that the ICC is still pursuing three Kenyans on charges of witness interference. If taken forward these cases could potentially implicate people closely associated with Kenyatta and Ruto. A withdrawal would not change Kenya’s legal obligations under the Rome Statute to transfer the three Kenyans subject to arrest warrants to the court. But Nairobi could use it as the ultimate explanation for why it will not engage the court further on these cases.
Yet, Kenya has already indicated its reluctance to hand over the suspects and there are no signs that the Court is currently actively pursuing the cases. A potential withdrawal would make it even harder for the ICC to enforce the outstanding arrest warrants. But it could also possibly make the Court reconsider its current ‘go quiet’ strategy.
Secondly, a withdrawal would complicate an already complex domestic situation. As the Kenyan government has already secured a mandate from Parliament to withdraw it could argue it has a democratic mandate to do so. Yet, Parliament’s motions calling for the government to pull out of the ICC were passed at a time when the ICC was pursuing charges against Kenyatta and Ruto and were arguably mainly symbolic measures aimed at showing support for the two men at the time.
There is currently significant resistance both in civil society and the political opposition to a withdrawal. Some opposition leaders claim doing so would demonstrate Kenyatta and Ruto’s “plan to rig” the elections scheduled for 2017.
Should the Kenyan government opt to withdraw before the election this could re-open the debate about how Kenyatta and Ruto have used the government’s machinery to fight the ICC and to advance their personal interests. The government is already under significant pressure domestically for its failure to take meaningful action on grand corruption.
Most observers suspect it is a question of when, not whether, Kenya will pull out of the ICC. There is little doubt that Nairobi is seriously considering doing so. But it is also clear that there is some incentive for it not to withdraw immediately.