Now British MPs supports Kenya,want ICC cases dropped

On Wednesday, the British House of Commons suspended normal business for two hours to discuss the Kenyan cases at the International Criminal Court at The Hague. A number of MPs came out strongly, saying it was inappropriate to have the Kenya President and his deputy tried at The Hague, questioning the neutrality of the ICC, as well as the fact that Kenya has demonstrated capacity to internally resolve the matters related to the 2007/2008 post-election violence. Great concern was also raised about the wisdom of keeping away from his country the head of state of a front-line country in the war on terrorism at this point in time. Below are excerpts from the Wednesday debate in the House of Commons Eric

Joyce (Falkirk) (Ind):

Today, I am particularly concerned about the nature of the on going action by the International Criminal Court against President Kenyatta and Deputy President Ruto, and that is, primarily, the context in which I will speak. On Saturday October 12 (today), the African Union will meet to discuss the possibility of African ICC member states withdrawing from the ICC en masse.

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That meeting will take place in Addis Ababa and was precipitated by the ICC’s treatment of President Kenyatta and Deputy President Ruto. Some nations, particularly African nations, that are signatories to the treaty of Rome are placing the future of the ICC in question. There is a risk that Africans in the UK-I speak to many of them in Diasporas of all sorts, and particularly Kenyans – will see it as the African criminal court, rather than the International Criminal Court.

When President Kenyatta won the election, the Prime Minister encouraged him to come to the UK and met him soon after his election, which sent a significant message. Nevertheless, there is a strange and strained diplomatic relationship, in that we still support the ICC and its on going action to bring the President to court. Kenya is one of our most important allies on the African continent. One of our largest foreign military training bases is there, and the UK and Kenya host each other’s large Diasporas. Trade with Kenya through Nairobi has been increasing almost exponentially for some years. We have the strongest of historical links, too.

Jim Shannon (Strangford) (DUP):

I thank the Hon Gentleman for bringing this matter to the Chamber for consideration. Some 600,000 people were displaced and 1,100 were killed, including 30 women and children who were burned alive in a church. Does he not believe that now is the time for the International Criminal Court to try those who were responsible for those crimes? Eric Joyce: I thank the Hon Gentleman for his important intervention, which goes to the crux of the debate. It is becoming a political issue.

Of course it is right to hold people to account, but things happen in the world, in Africa and, historically, closer to home, and sometimes a choice must be made between justice and peace. That is not to say that standards are lower, but as my argument develops it will be seen that this is one such case. David Simpson (Upper Bann) (DUP): Innocent people have been murdered and burned alive in churches…

Eric Joyce:

I thank the Hon Gentleman for that intervention. We know that there was violence after the 2007 General Election, and we know that following the violence, presidential candidates came together to form a Government of national unity. President Kibaki and Prime Minister Odinga were the two primary office-holders, and that coalition held together for a full term of office. Significantly, violence was almost entirely absent at the following election, after the coalition—the election that has just taken place. That suggests that a lasting resolution was achieved with the coalition back in 2007, and Kenyan people under- stand that.

Kenya has also successfully come through a period of strife, when other countries have col- lapsed under the terrible weight of internecine warfare. Kenya is the great economic success story of east and central Africa. It is leading the fight against terrorism in Somalia. We know now, given events over the past few weeks at the Westgate mall, how terrible a price the Kenyan people are paying for being at the front in that ongoing battle, but they have not wilted or split. Kenyans have remained united in the face of all that has been thrown at them by terrorists.

It seems to me that we shouldn’t reward them by insisting that the President and Vice-President, who are leading them into what promises to be a very decent future, stand trial at the ICC, accused of hotly disputed offences that took place years ago. The ICC is inherently political, as are its outcomes. It is significant to note that all 32 indictees of the ICC have come from Africa. The ICC says, “Come on guys, you can’t blame us for taking action, because the cases were referred to us.” But that is where it becomes inherently political, because we put great pressure on those states to refer cases to the ICC. We cannot just hold our hands up and say, “Nothing to do with us, guys.”

Clearly, we put enormous pressure on those states. Enormous pressure was put on those states, and they did what we asked, but now, because they did, they find themselves in a terrible bind. The only place that the ICC is able to act is Africa, and that is a terrible state of affairs. It cannot act in nations that are in the or- bit of China—we all understand why—or of Russia, the countries of the Far East are out. Sri Lanka is out, obviously India is out. Anything in the orbit of America is out.

Obviously, Europe is out—we are not going to indict ourselves, are we? The United States did not sign up to the ICC because it was concerned that former US politicians might be arraigned in front of the ICC. Of the five permanent members of the Security Council, the three most powerful have not signed up for political reasons. That takes out the great majority of the countries of the world, leaving those that are not considered to be strategically important, and—guess what?—are in Africa. The Africans say, “This is the African criminal court, really, isn’t it? It is not an international criminal court at all.”

Jim Shannon:

The Hon Gentleman referred to the ICC and its credibility. The fact is that the Kenyan Government has decided to withdraw from the ICC and that there are cases pending at the court. How does he see the role for Government in trying to ensure that there will still be prosecutions, now that Kenya is no longer—at least on paper—part of the ICC?

Eric Joyce:

I thank the Hon Member for his intervention. I think that the technical situation is that the case will continue even if Kenya withdraws, although my instinct is that it will be difficult to do anything in that situation. I suppose the ICC may criticise the President’s absence and then carry on with the trial. Theoretically, and it is pretty theoretical, the African nations that are considering withdrawing—I hope that they do not withdraw—would still be subject to any current cases involving them, although not to any future cases.

So, for the moment the case against the President would continue. In a sense, therefore, it is academic whether Kenya has chosen to withdraw from the ICC or not, although I hope that it will come back in. I think that Kenya is making a very powerful statement, just as some other African states that are supporting Kenya’s cause at the moment are making a similarly powerful statement. During the election in Kenya, a former American ambassador (Johnie Carson) — allegedly said, “Choices have consequences.”

And the Kenyans went on: “OK, then, so we will choose to do the thing you don’t want us to do.” The con- sequence was that the Americans got the person they did not want, ironically just as we got Jomo Kenyatta (at Kenya independence), who was originally not the guy we wanted. Mr William Cash (Stone) (Con): This is an interesting and important debate. I am chairman of the all-party parliamentary groups on Kenya and on Uganda and, as chairman or secretary of various other all-party groups, I have been much involved in all matters relating to East Africa since the 1980s.

I have a strong sense that that part of the world is extremely important both in its own right and in relation not only to the United Kingdom but to the world as a whole. Economically, it is one of the fastest-growing areas in the world. At the heart of all this lies the question whether domestic matters should be adjudicated by a methodology applicable through international law when the better route could well be to have them dealt with in the country in question.

Jim Shannon:

One concern is that if the ICC case collapses, and there is every possibility that it might, the credibility, security and safety of the witnesses that have been called come into question. Does the Hon Gentleman share my concern about those independent witnesses who may feel under threat if the case collapses? Mr Cash: I certainly do. There must be a significant review of the methodology that is applied in relation to the ICC process.

Ian Lucas (Wrexham) (Lab):

Kenya, whose relationship with the UK is massively significant, is hugely important in that regard, for instance in addressing the difficulties in Somalia and the horn of Africa. That cause has been carried out at great cost to the people of Kenya over several years, most recently, of course, in Nairobi. The country is strategically important, and we all want it to be a strong international player.

Before I turn to Kenya’s membership of the ICC, I want to refer, as other Members have, to the dreadful recent attack in the Westgate shopping centre. Right across the world, the focus has been on Kenya because of what happened there. The confirmed death toll was 61 civilians and six security officers, and Britons were among those killed. Our thoughts are with all those affected by these tragic events.

We must of course support the Kenyan Government in showing leadership in dealing with a problem that, as I have said, transcends the borders and boundaries of countries across the world. Ian Lucas: The Hon Gentleman makes an excellent intervention, and puts the difficult question very well. It is, however, important to remember that Kenya has chosen to be a member of the International Criminal Court. If it withdraws, it will leave an international institution that it chose to join.

Eric Joyce:

I do not dispute my Hon Friend’s earnestness and his argument, but can he imagine a situation in which the UK Prime Minister is held responsible by the ICC for some terrible cataclysm? Does he think that we would agree to send the UK Prime Minister to The Hague? Ian Lucas: If we submit our- selves as a nation to the authority of the International Criminal Court, we must accept that that court has jurisdiction.

Such an issue would be difficult and many in the United Kingdom would not want to accept the court’s jurisdiction, but if we have submitted to the court through legislation, as has been mentioned, we must accept the consequences. We cannot duck out when it gets difficult. The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mark Simmonds) response:

I turn to specifics that Hon Members have raised about the ICC and Kenya. Of course I accept that the topic is controversial and sensitive, and creates difficulties for the Kenyan Government, but after the appalling post-election violence in 2007-08, many believe that justice is essential for national reconciliation and healing, and that the trials must continue to give the victims and the accused access to justice. The UK Government recognises that President Kenyatta and Deputy President Ruto have constitutional obligations and important responsibilities at home, as the Westgate attack illustrated so graphically.

We therefore believe that the Court’s decision to alternate the trials of the President and Deputy President, to ensure conformity with the Kenyan constitution, and to agree a short delay to allow Deputy President Ruto to take part in the Kenyan Government’s response to Westgate, showed welcome pragmatism.

The Hon Gentleman also raised the issue of the Kenyan Parliament’s vote in support of a motion to withdraw from the Rome statute. We must be clear: it is for Kenya, as a sovereign country, to decide whether to withdraw. We, of course, very much hope that it does not.

Mr Cash:

Is the Minister entirely satisfied that the methodology and process adopted in respect of President Kenyatta and Mr Ruto has been followed in what one would objectively regard as the appropriate manner?

Mark Simmonds:

As I said earlier, the ICC only takes up matters when the country in question does not put in place the requisite judicial process to allow relevant prosecutions or investigations to take place. Specifically, the Waki commission, to which the Hon Member for Falkirk referred, gave the Kenyan authorities time to put in place the necessary and appropriate structures to deal with the judicial process, as it relates to the terrible atrocities that occurred in 2007-08.

It is only because the Kenyan authorities did not do that at the time that the matter was referred to the ICC. Before I conclude, I shall reflect for a moment on the Kenyan elections in March.

The Kenyan people and politicians need to be congratulated on the peaceful nature of the elections, which was in stark contrast to the violence which marred the election in 2007-2008. That demonstrated the determination of the Kenyan people to express their democratic right to elect a Government of their choosing in an environment free from violence and intimidation. Kenyans should be proud of that significant achievement.

Mr Cash:

Is the Minister willing to continue this dialogue after the debate, in light of my remarks regarding my uncertainties about the manner in which the ICC goes about a lot of its business?

Mark Simmonds:

As always, I am happy to talk to my Hon Friend about his views. I will of course be pleased to hear how he thinks the ICC could work better.

The UK-Kenyan relationship is significant, and we want it to continue to develop. We want trade to grow. We want more UK companies to invest in Kenya and more Kenyan entrepreneurs and businesses to invest in the UK. We want to strengthen our partnership in a range of areas, from counter- terrorism co-operation to defence matters. – By ANTHONY MWANGI

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