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This House believes the Uhuru Kenyatta indictment was an unwelcome interference by the ICC
This House believes the Uhuru Kenyatta indictment was an unwelcome interference by the ICC
On the first of July 2002 the Rome Statute that formed the International Criminal Court (ICC) came into force. The ICC was needed to try the most serious war crimes and crimes against humanity when sovereign nations are not in a position to do so themselves but this inevitably means there will be conflicts between the individual sovereignty of nations, and a court that wishes to try their nationals outside of their domestic justice system. The ICC as an independent international organisation, outside of the United Nations system running on funding from state parties is able to conduct its own investigations, but still needs cooperation from the states parties for the arrest of those who violate international criminal law. In order to be able to prosecute people involved in conflict, the ICC needs to have a referral either from the country central to the conflict, by the United Nations Security Council (being made up by the US, France, Russia, China and the UK), or prosecutors can seek leave to charge leaders themselves.
In the case of Uhuru Kenyatta Kenya referred the case to the ICC itself. The case was the result of violence after disputed elections in 2007 which pitted the Kikuyu ethnic group’s party the Party of National Unity lead by Mwai Kibabi against the Orange Democratic Movement mostly made up of Kalenjins and Luos with Raila Odinga as their candidate. Odinga’s party believed they had been cheated of the election leading to protest, and violence; an estimated 1200 were killed and 600,000 fled their homes. Those accused of instigating the violence are Uhuru Kenyatta on the PNU side and William Ruto and Joshua Sang for the ODM. Kenya conducted an investigation, the Waki Commission, but the Kenyan Parliament refused to act on its advice to create a special tribunal so the information from the commission was passed to the ICC in July 2009. With this information the ICC prosecutor invoked proprio motu powers to launch an investigation without a prior request from the UNSC or Kenya. Charges for crimes against humanity against Kenyatta, Ruto, Sang and one other, Francis Muthaura, were confirmed on 8th March 2011.
Politically however the situation is difficult for the ICC. Despite having been on opposite sides in 2007 in the next elections in 2013 Kenyatta and Ruto had put their differences behind them to form a coalition. This coalition won the 2013 elections, though by a close margin and not without dispute, making Kenyatta the fourth president of Kenya and Ruto his Deputy. Ruto’s trial has already begun, though it was interrupted by the attack on the Westgate shopping center. Kenyatta’s trial is set to take place in 2014 though it is being delayed. Both Ruto and Kenyatta have stated they are willing to cooperate but have criticized the court calling it “a painfully farcical pantomime” and a “toy of declining imperial powers” while the African Union has called for immunity for all sitting leaders, and for the indictment of Kenyatta to be dropped.
 Escritt, Thomas, ‘Kenyatta trial doomed unless Kenya helps: ICC prosecutors’, Reuters, 5 February 2014, http://www.reuters.com/article/2014/02/05/us-kenya-icc-hearing-idUSBREA140MC20140205
|Points For||Points Against|
|The ICC indictment undermines democracy||Justice is important|
|Having the president out of the country undermines stability||Breaks cycles of violence|
|Kenya can prosecute these crimes itself||Kenyans wanted the investigation|
|A pointless trial that victimizes African leaders|
Remember to choose a winning argument!
The ICC indictment undermines democracy
Uhuru Kenyatta is a sitting president of a democratic nation. This means that he was elected by the people to serve them. By indicting a sitting leader, you undermine their ability to rule the country as they will be forced to spend long periods outside their country focusing on something that is irrelevant to the governance of their country. The ICC has demanded that Kenyatta and Ruto attend the trial in person. By forcing the President and Deputy President to spend long hours away from the country involved in a trial the ICC is effectively disenfranchising the people who voted from him to be their leader. Further, Kenyatta is first and foremost accountable to the Kenyan people, who have chosen him as leader despite these claims. It is clearly unwelcome interference by the ICC for the court to take the President away from his duties.
 Statement by ICC, ‘Kenyatta case: ICC Trial Chamber V(b) reviews decision on presence of accused at trial’, whereiskenya.com, 27 November 2013, http://whereiskenya.com/icc-judges-kenyatta-case-videolink-kenyatta-must-person-5th-february/
It would seem to undermine democracy to allow a president accused of violence during an election to continue to serve. Elections are only one part of a democracy; another is a functioning and respected rule of law. When the president has charges to answer he should stand down, at least temporarily. It is wrong to assume that someone who is elected as representative should have some form of immunity and that outside forces should not be able to investigate him; a president has a lot of power to repress minorities. That repression being supported by a democratic minority does not make it any less wrong. Moreover Kenyatta was elected with 50.07% of the vote, not an overwhelming endorsement.
Having the president out of the country undermines stability
While Kenyatta and his deputy William Ruto have been visiting the ICC, they should have been leading their countries. While the indictment has occurred both have remained the leaders of their countries, but have been absent while major events such as the Westgate shootings occurred. Despite the need to strong leadership in the midst of a potentially divisive event, Ruto was only granted one week away from trial. Having a clear and stable leadership is important for Kenya to develop, restrict violence and ensure that policy development is able to continue, particularly given the cross-ethnic powering sharing arrangement between Kenyatta and Ruto. Absence of leadership during the fear and uncertainty surrounding this event might lead to a fresh round of violence as supporters take to the streets in protest – this election had put former enemies Kenyatta and Ruto together, easing ethnic tensions in the region.
Being leader should not allow you blanket immunity from persecution of crimes. If an agreement was able to be reached for these two men, surely a similar agreement can reached for others. Stability might be undermined more if leaders who are proven to committing war crimes are allowed to remain in power where they may do so again.Improve this
Kenya can prosecute these crimes itself
Kenya has a functioning judiciary and police force. They have successfully prosecuted some individuals for these crimes and it should be left to Kenya to deliver justice for itself. There have been several cases brought before the courts. Kenyans overwhelmingly see the ICC is ‘imperialist’, and 61% want the ICC to terminate its case against Kenyatta. If and when Kenya’s leaders should be tried should be left to the domestic judiciary to decide.
 Nebehay, Stephanie, ‘UN urges Kenya to probe violence after 2007 elections’, Reuters, 26 July 2012, http://www.reuters.com/article/2012/07/26/ozatp-kenya-un-rights-idAFJOE86P07M20120726?sp=true
In the five years since the violence occurred, very little action has occurred from the domestic forces; there have been only two murder convictions for the 1200 deaths. Furthermore, these forces are working for the people they are meant to be investigating. The case of Kenyatta has seen accusations of witness intimidation on large scales, meaning objectivity in local courts is very unlikely to occur. The result of the Waki commission was to hand over alleged perpetrators to the ICC directly, showing that Kenya felt the need to rely on this international framework.
 ‘Kenya: Prosecute Perpetrators of Post-Election Violence’, Human Rights Watch, 9 December 2011, http://www.hrw.org/news/2011/12/09/kenya-prosecute-perpetrators-post-election-violence
 ‘Perceptions and Realities:Kenya and the International Criminal Court’, Human Rights Watch, 14 November 2013, http://www.hrw.org/news/2013/11/14/perceptions-and-realities-kenya-and-international-criminal-court
 Wachira, Muchemi, ‘Annan did not ambush Kenya says Justice minister’, Daily Nation, 13 July 2009, http://www.nation.co.ke/News/-/1056/623306/-/ukx8q9/-/index.html
A pointless trial that victimizes African leaders
While the ICC feels free to interfere with African countries it would never dare to do so in a western country; leaders such as George Bush, Tony Blair, Nicholas Sarkozy and others who have launched various armed interventions have not been put on trial. Not only is it victimization and interference the trial of Kenyatta is also likely to be pointless; it is on the point of collapse. The prosecutor Fatou Bensouda has stated “Having carefully considered my evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial”.
 AFP, ‘'Not enough evidence for Kenyatta trial': ICC prosecutor’, Google, 19 December 2013, http://www.google.com/hostednews/afp/article/ALeqM5gogR-q3dBDCH4lzeEEnUnA4kfGag?docId=271e8feb-da06-4fd8-a859-9cc7c1e5a0f6
Far from too much interference that the trial is on the point of collapse shows there has not been enough. The ICC has found itself unable to protect witnesses, with the result that there have been two withdrawals. Both the defence and the prosecutor claim there has been witness intimidation in the trial.
 ‘Kenyatta lawyers demand trial scrapped, say witnesses intimidated’, reuters, 10 October 2013, http://www.reuters.com/article/2013/10/10/us-kenya-icc-defence-idUSBRE9990W820131010
 Sterling, Toby, ‘Kenyatta war crimes trial: Prosecutor asks for delay after witnesses withdeaw in case against Kenyan President’, The Independent, 20 December 2013, http://www.independent.co.uk/news/world/africa/kenyatta-war-crimes-trial-prosecutor-asks-for-delay-after-witnesses-withdraw-in-case-against-kenyan-president-9017339.html
Justice is important
Justice is important in its own right, for the victims of the atrocities and for the development of Kenya. Victims have a right under the Universal Declaration of Human Rights to have access to justice. Being elected should not be a blanket ban from being prosecuted for your crimes. In fact, the rule of law establishes the principle that leaders are subject to the same laws as all citizens. By seeing leaders being prosecuted for crimes, everyone sees the system working, allowing citizens to trust and buy further into the democratic system. As a consequence, the pursuit of justice is the most important factor above and beyond any claims of interference.
 Article 8, Universal Declaration of Human Rights.
Justice can still be sought by either local courts or after Kenyatta’s term ends. Justice should be done without ICC interference in the domestic affairs of Kenya. Even so, this does not seem like the pursuit of justice by the ICC, rather a witch hunt by the ICC for African leaders.
Breaks cycles of violence
When violence is not punished, it tends to lead to more violence – such as the lack of prosecutions following the violence occurring after the 1992 and 1997 elections, to which people attribute to the air of impunity in the 2007 elections. This is firstly because people never heal from the initial violence – when justice is not seen to be done, they remain angry and partisan. Secondly however, a lack of retribution leads to increased confidence to repeat and exacerbate acts.Improve this
Justice for violence is not fundamental to peace, as can be seen by the comparatively peaceful 2013 elections. Having now established working relationship between ethnic communities, why stoke the fire by prosecuting community leaders? 60% of Kenyans say they do not believe that the case even if it runs to a conclusion will not help heal Kenya.
Kenyans wanted the investigation
It cannot be unwelcome interference in Kenya’s internal affairs when it was Kenyans who invited the ICC in. It was the Kenyan government that set up the Waki commission under Kenyan Court of Appeals Judge Philip Waki into the violence. It was then this commission that decided to pass the results of its investigation on to the ICC in order to get prosecutions due to the failure to set up a special tribunal. The Kenyan government may have disliked the final outcome of its creation of such a commission but it was undoubtedly asked for by the Kenyan judiciary. Moreover until it became clear that the trial could collapse Kenyans were largely supportive with more than half the country supporting the trial.
 Maliti, Tom, ‘New opinion poll finds rise in support for ICC; many want Kenyatta to attend trial’, Kenya Monitor, 15 November 2013, http://www.icckenya.org/2013/11/new-opinion-poll-finds-rise-in-support-for-icc-many-want-kenyatta-to-attend-trial/
The Kenyan Parliament decided against creating a special tribunal, the court should not have then gone over the elected representatives’ head to hand the case to the ICC. The Parliament has since shown its displeasure at the ICC’s interference by voting to leave the ICC entirely.
 AP, ‘Kenya votes to leave ICC days before deputy president’s Hague trial’, The Guardian, 5 September 2013, http://www.theguardian.com/world/2013/sep/05/kenya-icc-international-criminal-court
AFP, ‘'Not enough evidence for Kenyatta trial': ICC prosecutor’, Google, 19 December 2013, http://www.google.com/hostednews/afp/article/ALeqM5gogR-q3dBDCH4lzeEEnUnA4kfGag?docId=271e8feb-da06-4fd8-a859-9cc7c1e5a0f6
AP, ‘Kenya votes to leave ICC days before deputy president’s Hague trial’, The Guardian, 5 September 2013, http://www.theguardian.com/world/2013/sep/05/kenya-icc-international-criminal-court
‘African Union accuses ICC of ‘hunting’ Africans’, BBC News, 27 May 2013, http://www.bbc.co.uk/news/world-africa-22681894
‘Will Africa pull out of the ICC?’, BBC News, 11 October 2013, http://www.bbc.co.uk/news/world-africa-24452288
‘African Union urges ICC to defer Uhuru Kenyatta case’, BBC News, 12 October 2013, http://www.bbc.co.uk/news/world-africa-24506006
Escritt, Thomas, ‘Kenyatta trial doomed unless Kenya helps: ICC prosecutors’, Reuters, 5 February 2014, http://www.reuters.com/article/2014/02/05/us-kenya-icc-hearing-idUSBREA140MC20140205
Gatehouse, Gabriel, ‘Kenya violence: Survivors’ tales’, BBC News, 10 September 2013, http://www.bbc.co.uk/news/world-africa-24021833
Gatehouse, Gabriel, ‘Kenya Supreme Court upholds Uhuru Kenyatta election win’, BBC News, 30 March 2013, http://www.bbc.co.uk/news/world-africa-21979298
‘Kenya: Prosecute Perpetrators of Post-Election Violence’, Human Rights Watch, 9 December 2011, http://www.hrw.org/news/2011/12/09/kenya-prosecute-perpetrators-post-election-violence
‘Perceptions and Realities:Kenya and the International Criminal Court’, Human Rights Watch, 14 November 2013, http://www.hrw.org/news/2013/11/14/perceptions-and-realities-kenya-and-international-criminal-court
ICC, ‘Kenyatta case: ICC Trial Chamber V(b) reviews decision on presence of accused at trial’, whereiskenya.com, 27 November 2013, http://whereiskenya.com/icc-judges-kenyatta-case-videolink-kenyatta-must-person-5th-february/
Maliti, Tom, ‘New opinion poll finds rise in support for ICC; many want Kenyatta to attend trial’, Kenya Monitor, 15 November 2013, http://www.icckenya.org/2013/11/new-opinion-poll-finds-rise-in-support-for-icc-many-want-kenyatta-to-attend-trial/
Nebehay, Stephanie, ‘UN urges Kenya to probe violence after 2007 elections’, Reuters, 26 July 2012, http://www.reuters.com/article/2012/07/26/ozatp-kenya-un-rights-idAFJOE86P07M20120726?sp=true
Ndonga, Wamubi, ‘Kenya: Ruto Can Return to Kenya For A Week Over Westgate – ICC’, allAfrica, 23 September 2013, http://allafrica.com/stories/201309230358.html
Open Society Justice Initiative, ‘Background’, Kenya Monitor, accessed 17/2/2014, http://www.icckenya.org/background/
‘Kenyatta lawyers demand trial scrapped, say witnesses intimidated’, reuters, 10 October 2013, http://www.reuters.com/article/2013/10/10/us-kenya-icc-defence-idUSBRE9990W820131010
Sterling, Toby, ‘Kenyatta war crimes trial: Prosecutor asks for delay after witnesses withdeaw in case against Kenyan President’, The Independent, 20 December 2013, http://www.independent.co.uk/news/world/africa/kenyatta-war-crimes-trial-prosecutor-asks-for-delay-after-witnesses-withdraw-in-case-against-kenyan-president-9017339.html
The Star, ‘Kenya: ICC Excuses DP Ruto From Trial Over Westgate Attack’, allAfrica, 23 September 2013, http://allafrica.com/stories/201309230907.html
Wanyama, Henry, ‘Kenya: 61 Percent of Kenyans Want ICC Cases Dropped – Poll’, allAfrica, 1 February 2014, http://allafrica.com/stories/201402030215.html
Wachira, Muchemi, ‘Annan did not ambush Kenya says Justice minister’, Daily Nation, 13 July 2009, http://www.nation.co.ke/News/-/1056/623306/-/ukx8q9/-/index.html
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