Four years ago, Kenya led an African Union push for members to withdraw from the International Criminal Court (ICC), which it accused of unfairly targeting African states. That is no longer the case – it is now seeking a stronger court.
While the withdrawal push appears to have collapsed – with South Africa’s attempt to pull out blocked by its High Court as “invalid and unconstitutional” – Kenya’s latest move of raising objections to the candidature of the four nominees to contest the post of ICC prosecutor, has raised eyebrows.
Kenya’s position is important since it sits on the UN Security Council, whose mandate is to “refer a situation to the ICC and empower the ICC to investigate all four crimes under the Rome Statute”.
At the centre of the row is Malawi-born Irish lawyer Fergal Gaynor, an ICC veteran who has worked at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia and the Criminal Tribunal for Rwanda. He was also the victims’ representative during the trial of President Uhuru Kenyatta and his deputy William Ruto at The Hague, where they were charged with crimes against humanity following the post-election violence of 2008.
Mr Gaynor, who grew up in Nakuru where his father Frank Gaynor was a teacher, is touted to be ahead of the pack since the outgoing holder of the position, Ms Fatou Bensouda, hails from Gambia.
The other short-listed candidates for the post are Uganda’s Susan Okalany, Canada's Richard Roy and Nigeria’s Morris Anyah.
While picking Ms Okalany, the committee had expressly noted that she had limited experience.
“Although her prosecutorial and judicial experience is limited to the domestic arena, her experience in prosecuting atrocity crimes and addressing sexual and gender-based violence is highly germane to the substance of the court’s work,” the committee had said.
While Kenya has not said any of these candidates is conflicted, it says, “The candidates presented have relatively limited managerial experience in large international institutions and do not have demonstrable diplomatic experience, particularly in engagement with States.”
ICC is a highly political court and is hated and loved in equal measure. Shortly after the Kenyan cases were terminated, President Kenyatta led an onslaught on the ICC and did not hide his disdain: “The Kenyan cases at the International Criminal Court have ended, but the experience has given us cause to observe that this institution has become a tool of global power politics and not the justice it was built to dispense,” he said.
While Kenya was expected to leave shortly after President Kenyatta settled his case, surprisingly, it didn’t. The then Attorney-General Githu Muigai explained why shortly before he left office. He said Kenya was one of the first nations to sign and ratify the ICC treaty.
“We did so then because we believed, as we do now, that these international institutions are important for securing the future of the world,” he told a meeting in Nairobi.
But at the heart of it, some insiders believe that the ICC will continue to deter politicians from starting ethnic feuds in Kenya for fear of being taken to the Hague for trial.
Prof Phil Clark of the University of Oxford, in a paper published last year, claimed that the institution, because of its heavy reliance on states’ cooperation, has “enabled African governments to use the ICC to target their political and military enemies, while protecting themselves from prosecution”.
Other nations critical of the ICC see it as a UN instrument for defaming countries. Last month, US President Donald Trump signed an executive order authorising sanctions and additional visa restrictions against any individuals who “have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States”, or have attempted to do the same against a US ally.
Already, Ms Bensouda’s US visa has been revoked, an indication of the power play on the global stage over the institution. By threatening to open investigations in Palestinian regions where the US and Israel possibly committed crimes, she touched a raw nerve. She has said she believed the court has jurisdiction over the matter. Israel and several other states disagreed.
Kenya feels the stage is being set to place Mr Gaynor at the top since the others would be technically knocked out.
“The current deputy prosecutor is a Canadian and his term expires in March 2022. In these circumstances, the election of a candidate of the same nationality in December, 2020, would be contrary to an express provision of the Rome Statute,” said Kenya in a letter signed by Mr Lawrence Lenayapa, ambassador to the Netherlands.
Kenya also seeks to disqualify some of the candidates who had handled cases in the court. “It would be imprudent for State Parties to settle for a candidate who would have to recuse himself from some of the most challenging cases pending before the court,” the letter said.
It is now known that Mr Gaynor, besides having been involved in the Kenyan cases as an attorney, has also represented some Afghan victims, an issue that has led to the falling-out between the US and the ICC. Nigeria’s Anyah was also involved in the Uhuru and Ruto cases.
Kenya has said it anticipated that the list presented would give the candidates an equal chance of being picked.
“The current short-list does not meet this expectation and appears skewed in favour of particular candidates,” it said.
“Taking into account that the former and outgoing prosecutors have been from the Latin America and Caribbean countries and Africa, it is unlikely that State Parties would build consensus around a candidate from these regions, thus diminishing the chances of African candidates,” Kenya said. It will be interesting to see how the State Parties will react to the Kenyan letter.
