Reforms: Spare baby and throw bath water

Writing in South Africa’s Sunday Independent last week, the Jamaica-born intellectual Horace Campbell urged African leaders to ‘bear in mind that it was the activism of Caribbean and African states that brought the ICC into fruition.’

Campbell’s was a timely reminder of the context in which the ICC was created and its purpose. Both have been all too easily forgotten in the current fraught debate about the Kenyan cases.

Kenya’s important role in the formation of the court has also been forgotten. In June 1998, Attorney-General Amos Wako acted as vice-president of the conference held in Rome to establish the court. According to this newspaper at the time, “Mr Wako told delegates … there was a need to establish an effective, impartial, credible and independent international criminal court.

“He assured them Kenya was committed to the cause.” Moreover, Wako demanded that the UN Security Council be given limited powers of interference so as to protect the independence of the ICC.

Although Kenya was slow to ratify the Rome Statute — it did not become part of the country’s laws until 2005 — the principles behind the ICC enjoyed broad support from across the political spectrum for a long time prior to ratification.

While Wako was busy helping establish the court, in December 1998, James Orengo celebrated the fact that the new court meant that “a Head of State who is safe at home, despite committing human rights abuses against his people, knows he risks arrest and prosecution outside his country.”

The significance for Kenya was not lost on Orengo. “Our leaders, if only for the fear of arrest abroad, are likely to be more cautious in the conduct and management of public affairs.” This consensus between erstwhile political rivals like Orengo and Wako was a product of the context of the time.

With Rwanda’s genocide and the abuses of power by authoritarian regimes recent memories, it was well-understood that the purpose of the ICC was to bring an end to the abuse of office that so marked the recent political histories of many African states. In the words of an editorial in this newspaper celebrating Kenya’s signing of the Rome Statue in August 1999.

“The international court idea is a message from the global community that human life, dignity and human rights will be on a higher pedestal from now and into the next millennium.”

BILATERAL AGREEMENT

This was a set of values that Kenyan politicians thought were worth defending, even under extreme diplomatic pressure. Barely remembered now is a row a decade ago between the US and the new Narc government.

The Bush administration demanded that Kenya join other states in signing a bilateral agreement promising US citizens immunity from prosecution by the ICC while in Kenya. Despite being threatened with cuts in military aid, Kenya refused to sign the agreement. By contrast, Uganda and Ethiopia did sign such an agreement.

The defiance of the Kibaki government attracted wide support from Kenyans determined to protect the ICC from US-led efforts to limit the court’s reach. In June 2005, a meeting of MPs and civil society activists, including Maina Kiai, in Nairobi reaffirmed their support for the court. Among the MPs was, The Standard reported, William Ruto.

So why does any of these matter? This is not an example of “gotcha” journalism beloved by American news channels where sound bites are played out of context to embarrass and fluster politicians: people are allowed to change their mind. I instead draw attention to these earlier debates about the ICC to make three points.

First, as Horace Campbell argues, the role of Kenya and other African states in founding the ICC is being forgotten in the current accusations of neo-imperialism. Second, the way in which the debate about the ICC has been transformed shows how a consensus in Kenyan politics about the need to address matters of impunity has crumbled over the past 15 years.

Third, the debates about the 1990s and early 2000s remind us of the problem the ICC was meant to solve: what to do about national leaders acting with impunity and harming their citizens. If, as the AU and a significant number of Kenyans seem to believe, the ICC is not the answer, what is?

The circumstances in which the ICC was founded are not so radically different from those today so as to make the court redundant.
Reform of the ICC and the Rome Statute may be necessary, but we should be wary of going too far.