Kenya gambled and lost at the ICC’s yearly conference – but it’s not game over yet

 

 

After a round of questions had been gathered, Navi Pillay, the former UN High Commissioner for Human Rights and member of AGJA, began to answer the senate leader’s question. But his attention was diverted. Instead of listening, he was playing on his phone and joking with those around him. “Mr. Senate leader”, Pillay sternly said, “I am talking to you…” Finally, he looked up only to be confronted with the best quip of the evening: “Before considering double standards on the  international level, you should confront double standards at home”. Understandably taken aback, the Kenyan senate leader could do little but nod in agreement.

 

In many respects, this episode was symptomatic of Kenya’s experience at the 14th ASP in The Hague. The country sent a one-hundred-person-strong delegation to the ICC’s annual conference. The bill for their flights, accommodation and expenses was footed by the Kenyan taxpayer. No delegation came remotely close to matching Kenya’s numbers. Delegates were instructed to attend all the side events and make their presence known. The word ‘hijack’ came up on more than one occasion. A permanent feature at the World Forum, the convention centre where the ASP was held, was a gaggle of Kenyan representatives who persistently loitered in the halls of the ASP. They certainly succeeded in making their presence known, but in a way that frustrated not only ICC officials but delegates of all stripes. 

 

The Kenyan delegation, headed by Foreign Minister Amina Mohamed, arrived at the ASP with one goal in mind: to ensure that Deputy President William Ruto would be acquitted on all charges relating to his role in the country’s 2007-08 post-election violence. To achieve their aim, Kenyan representatives put pressure on the ASP to guarantee that recanted evidence in Ruto’s trial could not be used retroactively to changes to ICC rules made in 2012. In fact and effect, they wanted the ICC’s member states to intervene in an ongoing judicial matter before the Court. Their efforts failed spectacularly.

 

Both the sheer size, as well as the undiplomatic behaviour of Kenya’s delegation, did the country no favours. When, in the opening plenary sessions, Kenya expressed its views, no other African states, other than Uganda, spoke in favour — not even South Africa, which many expected to buddy up with Kenya at the ASP. Throughout sensitive, behind-the-door negotiations, Foreign Minister Mohamed tweeted dozens photos of herself and other delegates, leaving the impression that she was more interested in giving the appearance of goodwill than actually searching for useful compromises.

 

Tweet.

 

In another public session, when a member of a civil society organisation mentioned allegations of the Kenyan government’s efforts to eliminate the Mungiki – a notorious and violent group that is responsible for many bouts of atrocities in the country – Mohamed exclaimed that the NGO representative was defending terrorism and needed to be expelled from the ASP. It wasn’t pretty. 

 

Delegations across the board seemed exasperated with the Kenyan delegation. Other crucial issues which needed to be debated and discussed at the ASP were short-shrifted because of the amount of time and energy spent on Kenya’s myopic concerns. Making matters worse, Kenya was making a fuss when it didn’t really need to. No one believes that the judges at the ICC would ever rely on recanted evidence in order to find Ruto – or anyone for that matter – guilty or innocent. Moreover, there was a broad consensus that the Court would not permit the use of recanted evidence retroactively as per Rule 68 of the Rome Statute. 

 

Still, the exasperation by many state delegations should be read as a welcome sign for proponents of the ICC. While the general atmosphere of the ASP may have been sour, I certainly did not take for granted that so many delegates would be so vehement in efforts to defend the Court and quite so exasperated with Kenya’s efforts. Their attitudes reaffirmed, in my view, just how much they were willing to invest in shielding the Court from suffering undue political influence. Moreover, it seems that some states may have responded to Kenya’s attacks on the integrity and independence of the ICC by providing the Court with a slightly larger budget than some observers expected — a 7.1% increase over last year. After the Kenya debacle, the bruised institution needed some kind of a win. 

 

Despite its efforts and the millions of taxpayers’ shillings spent on its efforts, Kenya won nothing and likely did damage to its reputation in the realm of international diplomacy. This could cost the country, at least in the short term, in other political, diplomatic, and economic spheres. And for what? The so-called ‘concession’ it eventually received was a reaffirmation of what ICC member states agreed to in 2013 – that evidence can’t be used retroactively to the detriment of the accused, but that this was a matter before the Court’s judges. In other words, in exchange for all of that money and bluster, Kenya got the ASP to repeat something it had already said. 

 

Of course, much of what happens next will depend on the outcome of the ICC’s Kenya cases and, for the reasons spelled out above, none of what happened at the ASP is likely to have much of an impact on the ongoing Kenya trials. There is still a strong possibility that Ruto will be acquitted or that his trial will collapse. All of this huff-and-puff from Kenya, and they didn’t bring the Court down. 

 

Nevertheless, this will surely be the last ASP dominated by Kenyan political interests. It was apparent: there is next-to-zero appetite to have another ASP like this one. If Kenya’s campaign to brazenly undermine the Court’s independence continues, the currently mild voices, suggesting that it would be a shame but not the end of the world if Kenya left the ICC, will grow.