The declaration by President Uhuru Kenyatta that no Kenyan will ever face the ICC again is surprising for two reasons. First, Kenya’s current legal arrangements do not exclude the possibility of a prosecution before the ICC being applied to Kenyan nationals.
The cases against the President, the Deputy President and four other Kenyans that were charged before the court, all of which ultimately failed, are nevertheless a demonstration of the fact that, in principle, a trial before the ICC is possible in law. Secondly, although the original Kenyan cases at the ICC have now all been terminated, there are three other cases that are ongoing before the court. The three cases have to do with allegations of witness tampering affecting the William Ruto case.
The ICC has issued a warrant of arrest against each of the three accused persons, although there have been difficulties in getting the government to execute the arrests. In the wake of the termination of the case against Deputy President William Ruto and journalist Joshua Sang, the ICC Prosecutor has expressed determination to carry on with these remaining Kenyan cases and will probably now take steps to increase pressure for their arrest and transfer to the court.
The public interest requires that the request by the Prosecutor for the arrest and transfer of these suspects should be resolved in accordance with the law, rather than personal preferences. The law requires that unless the arrest warrants are withdrawn, Kenya must arrest and transfer the suspects. is is an obligation both under the Rome Statute and also under Kenyan law, specifically the International Crimes Act.
Every day, the criminal law is being applied in Kenya through arrests – for example by the Traffic police. No citizen is allowed to dictate to the court before which he or she is to be charged if arrested for an alleged crime. is is the rule of law at work. In effect, the President is suggesting that any individual or group in this country that can gather sufficient power is free to choose whether or not to face court charges, or where such charges can be brought. If this were allowed, it would displace the rule of law and would be the beginning of anarchy.
The President has sworn to uphold the Constitution of Kenya and a trial before the ICC is part of the country’s constitutional arrangements. Whatever his personal preferences, or those of the people in his political corner, the President has a duty to enforce the Constitution. Executing the outstanding ICC arrest warrants is a constitutional duty.