The International Criminal Court (ICC) has said Kenya’s leaders, Uhuru Kenyatta and William Ruto, are under obligation to cooperate with the court in their ongoing cases at The Hague.
Reacting to Kenya's parliament which approved a motion to pull out of the International Criminal Court, the ICC spokesman Fadi El Abdallah said Kenya’s wish to withdraw from the Rome statute, does not exempt its leaders from attending the court hearings in which they are accused of post-election violence.
"For the time being there is no withdrawal, there is a legal framework that needs to be respected for a withdrawal," El Abdallah told DW.
Kenya's parliament on Thursday (05.09.2013) passed a motion to withdraw from the ICC a few days before Kenya's Deputy President William Rutto face his trial.
To formalize it, the parliament will have to vote on the bill within 30 days but the final decision will rest with the government, headed by President Uhuru Kenyatta and his deputy William Ruto.
Coalition MPs won the motion to withdraw from the ICC
The two leaders stand accused for allegedly orchestrating post-election violence that killed more that 1,200 and dispersed hundreds of thousands of Kenyans. Ruto's trial is scheduled to begin on Tuesday (10.09.2013) while Uhuru's trail is scheduled for the 12th November 2013. Ruto is jointly accused with journalist Joshua Arap Sang for complicity to commit murder among others.
A withdrawal however will not affect a state's obligation to cooperate with criminal investigations and proceedings of the Kenya's leadership already underway.
If the bill will be put in practice, Kenya would be the first nation to pull out of the ICC.
Kenya's sovereignty at stake
The Rome Statute says a "state party" may withdraw with written notification to the UN secretary general and the withdrawal takes effect one year later.
Citing the fact that the United States and other world powers are not members, the majority parliamentary leader, Aden Duale, argued that Kenya should withdraw from the Rome statute saying the country had to regain "its freedom," Duale said. "Let us protect our citizens. Let us defend the sovereignty of the nation of Kenya," Duale added.
Tiseke Kasambala from Human Rights Watch considers such statements as pure populism. In his opinion, the ICC as a court of last resort only intervenes when national courts are unable or unwilling to prosecute crimes in their country.
"So the Kenyan authorities are responsible because they did not act decisively to hold those who were responsible for the violence that took place to account," said Kasambala.
Victims feel abandoned
Representatives of the victims feel the coalition government of Uhuru and Ruto only have their interests to care about.” Our government has done nothing to help the victims,” said Getrude Angote who works for a local Kenyan NGO, "Legal Advice Center" that offers legal services to the victims.
“We are talking about victims, People who lost their homes and their possessions as well as women and children who have been raped.”
The vote on the motion was easily passed after members of the opposition party walked out in protest.
Intimidation of witnesses
Haru Ndubi, a constitutional lawyer told DW that under the Rome statute Kenya will now initiate a preventive detention of the accused at The Hague. So far there had been no arrest warrants against Kenyatta and Ruto, because they had been cooperative.
Ruto now hopes that witnesses will withdraw their incriminating statements or not appear in court at all. Kenya's leading daily newspaper “Daily Nation” reported that two witnesses backed down.
The two cited their safety and psychological stress respectively as reasons for their withdrawing from the case.
Back in March, the ICC dropped the charges against Francis Muthaura, a co-defendant of President Kenyatta.
The reasons given by the court were that some of the witnesses were either dead or no longer wanted to testify out of fear. Also, the lack of cooperation on the part of the government was cited as a reason.
These concerns seem now to shed light why Kenya wants to withdraw from the International Criminal Court.