The KHRC has been at the forefront in advocating for accountable, equitable and rights-centered governance and more so, justice for victims of gross human rights violations attributable to both the state and non-state actors, and ranging from the colonial to post-independence atrocities.

We have always maintained that the trial of President Uhuru Kenyatta, his Deputy William Samoei arap Ruto and radio journalist Joshua arap Sang at the International Criminal Court(ICC) is an opportunity for Kenya to fight impunity following the PEV, being the last resort following a failure to establish any meaningful judicial proceedings locally.. We strongly believe that a legitimate and credible justice mechanism anchored in constitutionalism is a critical ingredient of these processes especially for societies emerging from a post-conflict situation characterised by gross human rights violations such as the killings, rapes, internal displacements and property destruction witnessed during the PEV.

We affirm our commitment to human rights and justice for all. Contrary to what has been propagated, the ICC is not a foreign court. Kenya is a signatory to the Rome Statute and is also bound by its Constitution to comply with the rules of international law and ensure that no one is exempted from accountability for crimes against humanity.  It is therefore unfortunate that the current cases at the ICC against the President and his Deputy have been cast to look as if they were a case of an illegal extradition process akin to the notorious renditions against Kenyan citizens.   On the contrary, it must be noted that the ICC is a court of last resort in cases where effective complementarity has not been established. As a county, we must neither forget nor tire to point out the duplicitous character of our politicians who effectively blocked any efforts at establishing a local mechanism through their thunderous call:  Let’s not be vague, let’s go to The Hague!!. Again, since this call was made, only half-hearted measures (key among these being the wrong-headed attempts to set up an International Crimes Division) have been taken to show that Kenya is serious in its efforts to address the grave and serious crimes arising out of the 2007/08 PEV. Therefore, it is our position that  a deferral of the Kenyan cases would be tantamount to a miscarriage of justice since victims have waited for more than six years for justice, not to mention that there have been no real or meaningful attempts to bring justice and accountability for the 2007/08 PEV.

KHRC regrets the AU's decision to request that the cases against President Kenyatta and Mr. Ruto be either deferred by one year or be stopped altogether, and more so when there is no credible local process to seek justice for the victims or accountability for 2007/08 PEV We further reject the notion that the  the cases are now national or regional as the Minister for Foreign Affairs, Ms Amina Mohammed, would want us to believe. The ICC places responsibility on individuals, not communities, countries or regions. President Kenyatta has on several occasions superbly captured the foregoing by publicly stating that the ICC was a ‘personal challenge’ that he hoped to deal with even if he were to be elected President of the Republic of Kenya. Similarly, the President has publicly reiterated that Kenya will continue to cooperate with the ICC and its international obligations.  Additionally, while the complaints raised by the AU contend that the ICC is  biased against African countries, we hold that such complaints should be treated as political posturing on the part of the resurgent African Big Men and Women who invoke sovereignty and Pan-Africanism as a cover-up for their gross misrule.  The grand irony of the AU’s position against the ICC is its failure to acknowledge that most of the cases before the Court have  been referred to the ICC by the respective countries themselves.

The current efforts by Members of Parliament to seek Kenya’s withdrawal from the Rome Statute and their push for the repeal of the International Criminal Crimes Act, may not only affect Kenya’s cooperation with the Court but casts further doubts on the Kenyan authorities’ willingness to bring justice to victims through national proceedings. This grand-stalling by the politicians is a further affirmation of their desire to perpetuate the culture of impunity in the country. At the same time, what the politicians are not telling Kenyans is that a withdrawal from the Rome Statute would not affect the jurisdiction of the Court in the already on-going cases against President Kenyatta, his Deputy William Ruto and Journalist Joshua Sang.

We note that while the current efforts to withdraw Kenya from the ICC are pre-occupied with the dignity and image of a sitting head of state facing criminal charges and concerns of destabilization of the country, we wish to advise the President to dissuade himself from any advice not to attend the trials scheduled to begin from November 12, 2013. By attending the trial, the President will not only be remaining true to his promise of Kenya’s continued cooperation with the ICC but will be demonstrating his belief in the rule of law. It is our firm belief that trials in all court jurisdictions provide the requisite opportunities for the accused to present his or her side of the story before the court.  Therefore, not appearing before the court may be interpreted as an attempt to escape from truth and justice and any resultant consequences would be detrimental to the Country as a whole.

If President Kenyatta fails to honour his earlier pledge of appearing before the Court, he may be the subject of a warrant of arrest. This turn of events will likely subject our country to sanctions with far-reaching social, political and economic ramifications to the citizens.  To this extent, we laud the decision made  by the Deputy President William Ruto on October 16th 2013 to press on with the Hague Trials even in light of the developments at the AU front.  We however differ with his request for recusal from the proceedings for this is contrary to the Rome Statute and the established trial procedures and practices worldwide.

African states form the largest bloc of state parties to the Rome Statute. We encourage and challenge the Kenyan and African leaders to consider canvassing their concerns and grievances in respect of the ICC process within the Assembly of State Parties (ASPs) scheduled for November 2013. Indeed as indicated by Tina Intelmann, the President of the ASPs, “The Assembly provides a forum to exchange views on issues of concern to States, to consider amendments to the Court’s legal framework, to discuss how to enhance the capacity of national judicial mechanisms and assistance to victims and much more”.

.  Finally, we take this opportunity to advise that African Union interventions have to be undertaken within the human rights principles set out in the AU Charter which stipulates that "freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples". We must always remember to protect the rights of the victims and the underprivileged in society; not just the vested interests of the political elite.

The KHRC is an independent non-governmental organisation (NGO) founded in 1991 and registered in Kenya in 1994. Throughout its existence, the core agenda of the Commission has been campaigning for the entrenchment of a human rights and democratic culture in Kenya. We envisiona human rights state and society predicated on our mission offostering human rights, democratic values, human dignity and social justice.

Davis Malombe,

Deputy Executive Director