Quitting ICC? : no We cannot afford this!

Both our Senate and Parliament voted to withdraw Kenya from the Rome Statutes that established the International Criminal Court. Inevitably this has brought the subject of the ICC to the public stage in Kenya. This should be very healthy for our democracy. How I wish it would force a national discourse that has been lacking – one that embraces the topics of law, impunity and justice. Furthermore, such a discussion would force both government and citizens to reassess the costs and benefits of establishing international norms and the effects of opposing or complying with them.Kenya Parliament

We seem to be skeptics and rebels against everything we believe in, yet we embrace them whenever it is expeditious. The famous poet and essayist GK Chesterton, portrayed the flagging position of our present leaders on important issues like this when he said:

“But the new rebel is a skeptic, and will not entirely trust anything. He has no loyalty; therefore he can never be really a revolutionist[… ]In short, the modern revolutionist, being an infinite skeptic, is always engaged in undermining his own mines. In his book on politics he attacks men for trampling on morality; in his book on ethics he attacks morality for trampling on men. Therefore the modern man in revolt has become practically useless for all purposes of revolt. By rebelling against everything he has lost his right to rebel against anything.” ― G.K. Chesterton, Orthodoxy

Moving the motion in Parliament, Hon. Aden Duale. the majority leader in the House, said ; “The sovereignty of Kenya with a working judiciary and a vibrant democracy is under threat.” Then he added, ‘The constitution of Kenya promulgated in 2010 is supreme to any other law whether local or foreign.”

We should note that under the Rome Statute, domestic courts wield the primary authority, and only when they are unwilling or unable to prosecute crimes against humanity does the ICC have jurisdiction. One would hope that since the reformation of our judicial system it would have responded with alacrity to violations of humanitarian law committed during the post election violence, thereby eliminating the need for the ICC to prosecute, even though the statute ascribes ICC jurisdiction to only the most egregious and systematic crimes against civilians. We should have seen more indictments of offenders of PEV in our courts by now.

Charles Kanjama, an Advocate of the High Court of Kenya, arguing in support for the withdrawal from ICC said, “Kenya should not spend an hour longer than necessary as party to the Rome Statute. But the ICC suspects should continue co-operating in full, as long as ICC respects Kenya’s sovereignty in procedural rulings on the manner of trial. During trial, if ICC is not flexible enough to allow the Jubilee leaders concurrently to discharge their electoral mandate, a sovereign Kenya will have no other option save default. Kenyans already made their choice on March 4th. It’s now ICC’s turn to make its choice.”

Does it matter that we are signatories to the Rome statutes?

Being part of the Rome statutes stamps our belonging to the community of nations. This strengthens rather than undermines our sovereignty. Our withdrawal from the ICC may serve to isolate us more.
It is important that we become aware of a recent development in this field in the form of the UN’s “Responsibility to Protect” document. In December 2001, a UN Commission drafted a report titled ‘The Responsibility to Protect’ which developed “the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states.”

The report therefore, promoted the notion of “sovereignty as responsibility” and invoked inter alia the principles of Just War Theory to buttress it.

I must hasten to add that the report itself does not have the status of law, nor does it recommend amending the UN Charter with a provision for humanitarian intervention.
Kiambaa Church
It is for this very reason that the events of 2007-8 brought international intervention to Kenya. This shielded us from further humanitarian catastrophe and worked to bring Justice to the victims of PEV. Globalisation and rising interdependence solidifies the need and legitimacy of an international rule of law, the enforcement of which must be multilateral and cooperative.

The Kenyan case should be seen as a form of international intervention on behalf of human rights through the ICC just like military interventions elsewhere. For a claim on sovereignty we need an equal measure o especially a commitment to upholding human rights.

The end of the Cold War inaugurated changes in the international system that was marked by an increased prevalence of humanitarian interventions in reordering of global governance. The NATO campaign in Kosovo in 1999 is often described as the paradigmatic example of these humanitarian interventions: it is revered as history’s first instance of a truly altruistic war.

Nevertheless, the rationale offered for the war making, and the means employed therein, have been subjected to a plethora of criticisms, which are at the forefront of recent debates on global governance.

James Rosenau, an American political scientist and international affairs scholar, defined global governance as “intentional activities designed to regularise the arrangement which sustains world affairs.” Egregious humanitarian abuses do not sustain world affairs and it is within this context that humanitarian interventions are perceived as a form of global governance because they attempt to rectify such aberrations in the international order.

These interventions, along with the recent focus on the Universal Declaration of Human Rights and the Genocide Convention, have prompted some legal scholars to argue that humanitarian interventions are so commonplace in world politics that they are in fact a type of customary international law.

The doctrine and practice of humanitarian intervention presents a seemingly insurmountable dilemma in global governance: this dilemma is characterized by the tension between the primacy of state sovereignty and the protection of fundamental human rights. Some have cited the illegality of humanitarian interventions according to international law. Many states have on several occasions applied the concept as a form of global governance by intervening in the affairs of other sovereign states.
Hon. William Ruto
Hon. Kindiki Kithure, the majority leader in the senate, during the motion to withdraw Kenya from the ICC tore into the court saying, “The ICC has been turned into a vehicle to pursue international politics in a very rudimentary and capricious manner.” He further said that the ICC has been undermined by “a rogue prosecutor who is not supervised by anyone and is accountable to no one”. He may be borrowing a leaf from reasons unfortunately advanced by countries who have refused to ratify the statutes.

The US refusal to officially ratify the ICC is a huge drawback to the international community’s war on human rights violation. The US seems to be in bed with Russia and China when it comes to international law: by joining them in not ratifying the treaty, it is telling the world that it shares the priorities of these governments.

The US has been vehement that their citizens will be tried under the US laws for any human right abuses. Although US ratification would do little to motivate Russia and China to make the same move, it would send a clear message to the world that the US is ready to accept accountability for its actions and separate its record of human rights from those of Russia and China. The move would further ostracise Russia and China, both of whom face intense criticism today for their reluctance to reprimand the Syrian government.

Kenya’s quitting the ICC would not dampen the spirit of international Community’s protection of human rights. The victims of injustice would continue to cry for elusive justice. We will certainly reap political pressure of isolation that can prove such a strong diplomatic tool: it is crucial to publicly and globally separate the nations that are committed to prosecuting crimes against humanity and those that are not.

What will be our justification for failure to accede to the only established system of international due process and to recognise the international rule of law?

Rev Canon Francis Omondi
Anglican Church of Kenya
All Saints Cathedral Diocese


Don’t Intervene, Governor; Let the Luos face the fire!


Somali Militants Tap Global Recruiting Network


  1. Great piece . Even the believers who want us to quit ICC should be asking themselves which kind of God they serve. Would God have had Israel go to exile if he would not punish injustice? Why would he speak through Isaiah against injustice if he was just too loving to punish? Which God are we talking about?
    Charles Kanjama, the chair of Kenya Christian Professionals Fellowship talks as a false prophet to the leaders, urging them that God so loved Kenya that he gave them Uhuru And Ruto, that ICC must stop or play at their whims. Though as a lawyer he knows the accused cannot dictate to the court, in this case he would want it. How low we have come. Christianity without justice is a meaningless Christianity for it is one without God in it.

    • Thanks Doc, we all need to look at this issue from the prism of justice and retribution to those affected living or dead. The world has changed and we cannot hide behind state functions and duties to be shielded fom justice

  2. Thank you Cannon for this very well argued piece, shedding much needed light where previously all we have had is heat and noise.

  3. Thanks Njonjo, we needed to focus on these events from a global platform our sovereignty is so strengthened when we belong to community of nations than stand isolated …

  4. Elisha odero

    Sad, sad, reality for Kenya. Religious community, supposed to protect the weak and vulnerable, supposed to stand as light and salt…conscience and soul of the society panders to the whims of the rich, mighty and rulers. When professionals and , hence the populace speak not out of morality and conviction but political expedience…shamefully hurting. This is a great piece, my brother. Our elected representatives(not leaders) make me think there is “betrayal in the city and I go “cry my beloved country” for “the center cannot hold and things fall apart. May men and women of conviction, morality and saltiness stand up for this country. Pulling out of the ICC is an option the unfeeling, conscience-seared persons can think about.

  5. Mopa

    Rev. Good piece…though if u look at the handling of the cases critically you will note that the Prosecutor’s office has seriously bungled them.They r actually sham trials…no proper or any investigations done to sustain a conviction.When the Registrars office had visited during the initial stages I informed them that what they had presented to us could not hold water in a criminal trial(unless the threshold is lower at ICC) & that if I was representing the accused I would win. Well the case is now unfolding.And because if lack of investigations the whole ICC process in the Kenya case seems like it was just a political process biased against a few individuals.Justice must not only be done but also be seen to be done.So long as the person bearing the most responsibility for the eruption if the violence is not on trial then whole process is a sham

    • Thanks as always you help me see the other side. I however intended to challenge withdrawal from Hague as an issue that would be truly dangerous for us in future and now if it lands us isolation. As a good lawyer that you are victories in law are won not in press or rallies but in courts and i would have kept mum till the witnesses are paraded then allow the world to judge that this was a political and not a legal process. I do want to raise this with you on witnesses at The Hague …must they all be present? i saw almost none at taylors trial or the congolese fellow. There has been mentioned that there are aray of evidence to incriminate and thats what we all want to see and not pass judgement before the process even begin.
      I wanted to show us that soverighnity does not mean isolating ourselves from the international community but belong to it reignforces it for us. We should have looked at the context of post Cold War and the currency of protenction of human rights before deciding to walk away fromthe Rome statutes. I hasitate to

  6. Thanks Cannon! Manabii wa uongo wamefichuliwa na wataendelea kufichuliwa. God is patient. He is also just and NEVER lives sin unpunished. (Numbers 14:18) The suspects, and many of their supporters, seem to wallow under the delusion that it is the ICC they are up against. In truth, policy and legal instruments such as the UN Charter, the UDHR, the UN Convention against Genocide and even the AU’s Charter on Human and People’s Rights (I’ve never quite grasped the distinction!). Boils down to Lord Chesterton’s refrain on the trampling of morality, hence our moral bankruptcy. a cowardly church that, all buts stops at endorsing full-blooded impunity, is an affront to the core tenets of Christianity, captured in God’s character, including ‘slow to anger, abundant in lovingkindness, forgiving iniquity and transgression. God is clear in commandment no 6 that ‘You shall not murder’. He is equally clear in Leviticus 20 about whose head such blood would be upon.The Lord said to Moses, 2 “Say to the Israelites: ‘Any Israelite or any foreigner residing in Israel who sacrifices any of his children to Molek is to be put to death. The members of the community are to stone him. 3 I myself will set my face against him and will cut him off from his people; for by sacrificing his children to Molek, he has defiled my sanctuary and profaned my holy name. 4 If the members of the community close their eyes when that man sacrifices one of his children to Molek and if they fail to put him to death, 5 I myself will set my face against him and his family and will cut them off from their people together with all who follow him in prostituting themselves to Molek. Power gotten via murder, is toast to Molek! It is why God in Genesis 4:9 puts Cain to task about Abel’s murder! Then the LORD said to Cain, “Where is your brother Abel?” “I don’t know,” he replied. “Am I my brother’s keeper?” Abel’s blood had cried out to the Lord. In Romans 12:19 (KJV), we read: “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.”
    My prayer is that the Kanjamas, and others of their ilk who seem beholden to situational ethics – our mutual friend PLO calls them ‘men of negotiable morals’ – are listening. More than ever, there seems to be a compelling case for the refurbishment/rearmamament of our moral infrastructure……perhaps even more than that of sorting out our physical infrastructure – which many seem to think is a synonym for roads. Yet Abraham Maslow helped the world identify the human beings hierarchy of needs as far back as 1943! You would think the policymakers would want to have Agricultural and WASH infrastructure as a TOP NATIONAL PRIORITY. But NO! It is the ICC that seeks to save the people from mass murder and comparable crimes against humanity, that we seem prepossessed with! All in order to circumvent through this ill-informed and, even worse-timed, call by Parliament for a pull-out! May Your Will be done, O Lord!

  7. Thanks Canon, for this piece. I love the aspect of sovereignty as responsibility, not merely empty pride. I have always argued that if I were to choose between nationalist pride and justice, I pray that God would grant me the conviction to go for the latter. Charles Kanjama, a man I have had reason to admire in the past, has sold his soul to political expediency. ICC, like any other human institution, is fallible and has made many mistakes (besides the fact that our gorvt has kept throwing blocks on its path). But I always ask myself, if there anyone with doubt that so far, in as far as PEV is concerned, these ICC trials are the closest we have gotten to pursuing justice? Thanks for speaking.

  8. But I feel that the NAtional discourse you wish for is a pie in the sky. We are a very sick society, Rev. The dialogue you call for is a thing we are incapable of!

    • No, bro Lucas! Every society is capable of , NOT just change, but the DIALOGUE that, Cannon proposes, MUST precede it! I live in Rwanda. And I marvel to this day, that a society that re-establishes itself from the ashes of genocide, to be among Africa’s cleanest MOST SECURE and COMPETITIVE societies IN Africa, business-wise – THIS, WITH THE FULL KNOWLEDGE THAT A POSSIBLE 30% give or take 10%, of the currently active population, actively participated in the, now globally acknowledged genocide are either in prison or ACQUITTED, HAVING BEEN CERTIFIED SO, BY DUE PROCESS OF LAW!, OR CONDEMNED FOR THEIR TRANSGRESSIONS, broadly speaking, TOES THE LINE! It was NOT by chance. It took, DELIBERATE DIALOGUE TO INFORM POLICY ON NATIONAL COHESION AND RE-INTEGRATION, THAT WAS THEN UNSTINTINGLY IMPLEMENTED BY THE LEADERSHIP! IN my view, it takes THE WILL OF THE LEADER. For this, I SALUTE GENERAL KAGAME! He has demonstrated, NOT JUST THAT IT CAN BE DONE, BUT HOW IT CAN BE DONE!

  9. Kimathi


    There are three failings of Kenya as a Nation in the context of “Pulling Down Rome”

    1. Kenya risks failure as an ELDER BROTHER. Our position in the region is not only one of economic power. It is also one of influence (real & perceived). Is this the example that we want to set knowing full well that unbridled power poses risks both internal & external? Southern Sudan and Somalia come to mind. I would have thought that we would at the very least have been pushing for the African Criminal Court or an East Africa Criminal Court to address issues in the region.

    2. Kenya risks failure as a MOTHER. It is not enough that our children find themselves in Den Haag at our Parliament’s insistence/neglect. We are determined, unwittingly, to further bury them with grand standing and not so veiled threats. The phrase “child sacrifice” comes to mind.

    3. Kenya risks failure as a FATHER. Remember that repealing the ICC Act not only removes the ICC process but also crimes that are not recognized in other statutes. Say that events of ’92, ’97 & 2007 recur? No chance of prosecution for “crimes against humanity” as these do not exist under our law!

Leave a Reply

Your email address will not be published. Required fields are marked *

Powered by WordPress & Theme by Anders Norén