Kenya and the International Court of Justice (ICC)

via Bulawayo24 NEWS | Kenya and the International Court of Justice (ICC) by Njabulo 18 November 2013

The current news is that some of the UN member states have opposed the extension of time for the trial of Kenya leaders. However, this does not mean that the ICC will follow that decision. The ICC has the final say as it is a competent court of law which operates within the parameters of statutes or within the confines of international law. That is, the decision  arrived at by the UN is not binding to the ICC. The decisions of the ICC are binding on all lower courts or rather on all national courts. That is, they are supreme.

They cannot be overturned by any government or national court in any state or in any part of the world. Those decisions cannot be overturned by any parliament. That includes the UN. The UN is not a court of law. By its designation or its constitution, the UN only deliberates on matters that affect the member states. It does not wield the authority to adjudicate on any criminal cases.

It can only refer a matter to a competent court   of law (ICC). The decision to grant leave of the court or leave to appeal is solely a duty of the ICC. By ‘leave’, we mean the permission by the court. Now the crux of the matter here is that the UN is urging the ICC not to allow the Kenyan leaders any grace period or leave up to a year.

Our human rights watch has concluded that it would be unjust, unfair and unreasonable if the ICC blindly follows that decision arrived at by the UN. That will be unfair to Kenya and Africa as a whole. The ICC would have seized to save its purpose. That is to ‘save justice’ or to be impartial as a competent court of law.

The ICC should not arrive at its decisions with undue influence from the so called ‘super powers’. That is, when the ICC is adjudicating on African  cases.

More importantly, it should not be used as an institution to reciprocate or for reprisal by other states that would be having a vested interest in any case that the ICC handles. The ICC should not be used as a tool of changing leaders in Africa. It should not be used as a weapon of regime change.

To this end, the ICC has to change the law which allows for the subpoenaing or trying anyone who is currently a President or  Prime minister of any sovereign state. This is because, the leaders in question would have been voted to power or government by the majority of the people of their country.

The ICC operates within the ambit of international law. The international law stipulates that, the leaders of any state are to be democratically elected to power by their people ,unless other wise. In this case the people of Kenya elected the current Kenyan leadership. Therefore, in the eyes of international law they have the legal right to run their terms in office until they are voted out of office or relinquish their positions or their people have passed a vote of no confidence in line with their national constitution.

One could imagine a Prime minister or President of a first world country being subpoenaed to a national court or international court whereby there can be a chance for them to be indicted for a criminal case. That would mean that they will have to abandon their state or government duties.

That is  the case with the Kenyan leaders, there is crisis in Kenya at the moment. The Kenyan leaders need to bring about stability in their country, lest the enemy capitalises on their absence. Therefore, the ICC  should postpone their cases until their terms of office are over.

The ICC and the UN should take it into cognoscente that what they are trying these leaders for could repeat itself if the leaders in question relinquish their positions for the pending case(s) in question.

In any case, why should there be inequalities in the way the ICC operates? Why should Africa be disadvantaged always?. Why should wrong conditions be set for Africa? For example the setting of conditions, by the IMF, UN and other institutions that render help, or deal with governing  or administration of world treaties.

It is time that the AU (African Union) makes a well written submission to the ICC and the UN. It is time the AU  sets its own conditions without fear or prejudice. Why should Africa play a second fiddle in everything? Something needs to be done by the AU.

Many Africans now despise the Africa Union because of its deficiencies in running the affairs of Africa or handling of the African affairs. This perception needs to be changed.

The AU needs to be very objective in its approach in all international matters or dealings. It needs not be kicked left right and centre by other organisations or stop all bullying of it by other world organisations or continents or individual countries.

The coups that have beset Africa could be eradicated or avoided if the AU becomes effective. The killing of Muammar Gaddafi could have been prevented if the AU was an effective and efficient organisation. The unnecessary revolutions can be obviated if its house is in order. The sabotage of African economies by its enemies could be avoided if the AU is functional but not dysfunctional. The unnecessary sanctions and neo-colonialism could also be stopped if the AU is a viable organisation.



  • comment-avatar 10 years ago

    They must face the music if they did it. Guys if they must lose power, let it be. Guys you do not understand how African leaders abuse their power. Have the African leaders not committed the crimes they are accused about. If they committed them why the heck should they be scot free. Two wrongs do not make a right. Guys your relatives have not been murdered. that is why you say all these philosophical words. This is about a serious crime of dismembering human beings. This is not a circus!!!! For God’s sake!! Get on with the trial. It’s a deterrent, for heaven’s sake!!

  • comment-avatar
    Mike Nyathi 10 years ago

    If they are guilty, skin them alive – and now

  • comment-avatar
    Mr Mixed Race 10 years ago

    The writer of this article is trying to justify an issue using silly excuses.You must take into account governance and rule of law.What would happen if these accused make conditions impossible in Kenya to loose any election?Tell us Njabulo- What will happen next? In your report you pretend to be somebody who stands for justice and fairness whilst you unknowingly contradicting yourself.This is actually poor research and journalism.

  • comment-avatar

    The writer is biased in favour of the ruling elites at e expense of e masses. What if e president creates conditions that make it impossible to lose elections? We have already experienced this scenario in Zim 2008, Ivory Coast 2010, Lybia 2011 and Egyty 2011 where leaders refused to concede defeat and went to butcher their citizens. The reason y e two Kenyan leaders are on trial is precisely cos Kibaki and his hangers on refused to go after a defeat. Now w a real threat of facing e icc would such leaders agree to go. Surely u can’t e question y Africa get conditional help from donors. How could they just give money which they know very well will be abused and misused? Right noww Zim is saddled w a huge debt bt mari yacho was used to finance DRC war. Why did Zim intervene in that war in e first place cos Kabila wasn’t elected bt seized pwr after war driving out Mobutto? Why did Mugabe intervened to save e same citizens he claimed he wanted to protect when e Mobutto was attacked by Kabila w e help of Rwanda and Uganda? In such circumstances its clear any aid must be condtional kuti isatambiswe and remember kuti its tax payers’ money and donor countries gvts are answerable for that. Asi nhy iwe unoti serving presidents must not be tried asi hauzive kuti African presidents mafirapo. Look at Mugabe at 89 he still wants to go ko anaKabila, Dos Santos, Nguema, Biya, Museveni, Bongo, Jameh, Nguesso, Mswati 3 etc how long varipanyanga. VanaGaddafi saw it better kuti afe zvake panekusiya ko wekuEgyty how much fyt did he put kuti. arambe aripo ko kuzoti paane mhosva? Take issue of Zim zpf sought to wipe out ndebeles, in Rwanda and Burundi efforts were made to wipe out Tutsis both these tribes are minority which means even if elections are 200% free and fair still the perpetrators wld win due to tribal politics which is rampant on e continent so are u saying e minority don’t deserve justice? Wazorwadziwa nekufa kwaGaddafi munhu 1 ko thousands and thousands aakaurayisa hava basa simple cos they were not presidents? Get life my friend