ICC Debate: Can the ICC work for Kenya if Kenya does not want to work with the ICC? Sept. 4 2013 @ Strathmore Law School

The Panel

The conversation and public debate which has occupied the public space in the recent past has revolved around devolution. However, the ground is shifting with the International Criminal Court taking center stage. The ball has been set rolling with Hon. Aden Duale the Majority leader in Parliament introducing a motion which has seen the legislatures resume today from recess to debate and vote on Kenya pulling out of the Rome statute.

It is in this context that four actors namely Institute of War and Peace Reporting, Wanyamo Communication, Reporting Kenya and Strathmore Law School came together to organize a debate to better inform the public on the road ahead. 

The fourth debate which was held at the Strathmore University auditorium yesterday (September 4, 2013) brought together both proponents and opponents of the court, government and non-governmental actors, law scholars and the ICC representative who jetted in from The Hague. The event was set off with the dean of the law school Dr. Luis Franceschi giving some background context as to why Strathmore law School decided to host the debates. In his mind he had to contend with a few questions;

1. Would the hosting of such debates be considered a political act which could be construed wrongly by the establishment?
2. What business was it for a law school and for that matter a young one to toss itself into the limelight of international jurisprudence. 

In the deans mind it was of utmost important for the law school to enhance the public debate by giving an avenue for the proponents and opponents to debate in public.

The Panel

1. Kioko Kamula, Senior Assistant Director of Public Prosecutions representing the DPP
2. Gertrude Angote, executive director, Kituo cha Sheria
3. Prof. Peter Kagwanja, Chief Executive Africa Policy Initiative and former Government Advisor
4. Winfred Nderitu, Legal Representative of victims at the International Criminal Court
5. Phakiso Mochochoko, Head of Jurisdiction, Complementarily and Cooperation Division, Office of the Prosecutor, International Criminal Court

Moderator: Bettina Ambach, Director, Wayamo Communication Foundation

Highlights of the Debate

The ball was set rolling by the moderator asking the convening debate question; can the ICC work for Kenya if Kenya does not want to work with the ICC?

The entire panel pointed out that Kenya is a signatory of the Rome Statute and has as such been cooperating with the Hague based court. However, fireworks in the initial stages of the debate were generated by Prof. Kagwanja who in all means seems to be an opponent of the ICC process now that the status of two of the persons facing trial at the ICC have changed. Prof. Kagwanja argued that the 2013 elections was a referendum on the ICC and 50% +1 of the population in voting for Uhuru Kenyatta and William Ruto both as President and Vice President respectively was a vote of no confidence in the ICC. This is because the president’s party Jubilee coalition had pitched the election as a referendum on the ICC.

Redefinition of Victims

The other interesting outcomes of this debate were the apparent redefinition of victims. We are all aware that there are victims who suffered as a result of the Post Election Violence. Slightly over 1000 people lost their lives, women we’re raped and people lost their life savings and others were displaced and currently live in IDP camps. However, it seems the narrative of the victim may be changing as Prof. Kagwanja pointed out that in his opinion the case ICC has resulted in formation of two victims.

Peculiarity of the Kenyan Case

Mr. Phakiso Mochochoko the head of jurisdiction, complementarity and cooperation division in the office of the prosecutor from the onset made it clear he was only going to speak on the legal aspects of the case. However, he pointed out that in all cases witnesses do pull out however the Kenyan case had a high number of witnesses pulling out. 

Who is on Trial?

Analysts have pointed out that the Kenyan cases have put a spotlight on the ICC court and this came to the fore when Prof. Kagwanja pointed out that three entities we’re on trial namely;

• The three individuals
• The Government
• The ICC

Legacy of the ICC

When the moderator asked the panelists their views on the legacy of the ICC Mr. Kioko Kamula pointed out that the ICC has enriched the Kenyan law.

Bottom Line

This debate offered clarity on issues that are in the public space and the decision by the Head of Jurisdiction, Mr. Phakiso Mochochoko to attend the session in person was an excellent move.