Over the past few months Kenya has become the epicentre of growing tension between the International Criminal Court (ICC) and Africa. On 15 December 2010 the prosecutor of the ICC, Luis Moreno Ocampo, asked the court’s pre-trial chamber to issue summons for six individuals for crimes against humanity allegedly committed in Kenya during the 2007-8 post-election violence (in which more than 1 000 people lost their lives). The profile of the so-called ‘Ocampo six’ has served to inflame Kenya’s growing anti-ICC sentiment: it includes three senior, serving government officials, one of whom is the son of the ‘father of the Nation’, Jomo Kenyatta.

The latest move by the ICC prosecutor has sent Kenya’s political elite into reactive overdrive. The Kenyan parliament passed a resolution on 22 December 2010 calling for their withdrawal from the Rome Statute. That decision prompted a backlash from civil society in Kenya and beyond. Although the threat of withdrawal remains in the wings, the immediate focus appears to have shifted to using the AU Summit on 30 and 31 January to procure an AU resolution requesting the UN Security Council to defer the proceedings in Kenya under article 16 of the Rome Statute. Recent reports from Addis Ababa suggest that the AU Commission is taking a supportive position on the ICC which could make Kenyan attempts to secure a deferral more difficult than originally anticipated.

The Kenyan government’s strategy has been gaining significant momentum over the past few weeks on the continent. Officials have embarked on a breathless diplomatic spin through African capitals and has reportedly secured the support of key countries such as South Africa, Nigeria, Uganda and Ethiopia, as well as IGAD and the AU Commission. Surprisingly, the rationale given for the deferral appears to be to allow the Kenyan authorities to deal with the crimes domestically, invoking the ICC’s principle of complementarity, either in the form of local trials or some transitional justice mechanism.

This approach is concerning and unlikely to succeed for several reasons.

First, the approach is bad in law. A deferral (under article 16) can only be utilised if the Security Council (under Chapter VII of the UN Charter) determines that there is a threat to international peace and security. Not even the most pessimistic assessment of the ICC’s involvement in Kenya could characterise it as such. The problem with Kenya’s putative AU request is that it conflates two distinct aspects of the ICC: the power of the Security Council to halt proceedings for a period of one year in order to maintain international peace and security, and the principle of complementarity which ensures that the ICC is a court of last resort that only intervenes when national jurisdictions are unwilling or unable to do so. These two processes have differing ends and means, but the Kenyan government’s request seeks to use the means of article 16 to further the end of complementarity. While it is possible that the two may align, they simply do not in the case of Kenya.

Second, a request for a deferral of the Kenyan cases is unlikely to succeed at the Security Council. The patent legal flaws are likely to make it unacceptable to pro-ICC members of the P5. And notwithstanding reports of South Africa’s possible political support for Kenya’s agenda, upon proper reflection South Africa should balk at such an expansive reading of the notion of threats to international peace and security. South Africa’s apparent support for Kenya’s position is in contrast with South Africa’s previous attempts to curtail the Security Council’s ‘mission creep’ – witness South Africa’s position on Zimbabwe and Myanmar. Most problematic for Kenya (and its supporters in the AU) is that the request will be associated with a now established pattern on the part of African states (who have consistently made the same request in respect of Sudanese president Omar al-Bashir) to seek deferrals in cases when political elites are implicated.

The danger – which Kenya probably appreciates – is that the request is a political gesture which serves only to further alienate Africa from the ICC. It is difficult not to conclude that the request is designed to fail and further divide the ICC and Africa. The broad continental support gained in such a short space of time should thus be viewed with skepticism and concern – it does not portend well for the victims of the post-election violence in Kenya and of atrocities elsewhere on the continent, or for those concerned with impunity for the powerful.

Third, even if Kenya and the AU were able to gain sufficient political support this time round for the request to be granted by the Security Council, it is a stop-gap solution that must be renewed annually in terms of article 16. The likelihood of Kenya mustering the political support for such a legally and politically inflammatory decision on an annual basis is next to nil.

For supporters of the ICC’s investigation in Kenya the request for a deferral has been roundly criticised. Aside from the effect that a deferral would have on the ICC investigation itself, the fallout from another article 16 request from the AU on the court’s relationship with the region would be toxic. The initial reaction from civil society has been to reject both the means and ends of the request.

That said, Kenya’s reliance on the complementarity principle (as separate from its wrong-headed suggestion that it needs a Security Council deferral to pursue domestic cases), ought to be given some consideration. Complementarity is at the heart of the ICC’s Rome system. The principle was meant to assuage the concerns of states over threats to their sovereignty, enables greater victim participation and trials for a greater number of perpetrators of atrocities than could be brought before the ICC. When a state expresses a desire – as Kenya does with increasing fervour – to undertake its own proceedings nationally, that could be an expression of complementarity that the Rome Statute encourages.

In Kenya’s case, however, valid questions can be asked about the government’s sudden urgency to hold domestic trials for the post-election violence. It is no coincidence that this new position sprung to life after Ocampo requested a summons for the six accused. The Kenyan government has to date taken no concrete action to deal with those responsible for the 2007-8 violence. Despite the Waki Commission’s recommendation that a special tribunal be created for Kenya, Kenyan authorities dithered. As a result, Ocampo received the go-ahead from the ICC to proceed with his own investigation. So while domestic trials could represent positive steps towards complementarity on Kenya’s part, recent developments in that country could well be an attempt to delay justice and shield perpetrators, or to derail the ICC’s proceedings.

A more constructive approach, both for Kenya and ICC states parties in Africa, would be to establish credible national mechanisms that operate in conjunction with the ICC. National trials are the preferred option for dealing with the majority of perpetrators, but it is unlikely that those responsible for planning and directing mass crimes – usually leaders in positions of substantial power – will be tried domestically. Thus, Kenya should try those responsible for carrying out the post-election violence, while the ICC, in a parallel process, deals with those bearing the greatest resposibility for the atrocities. The Rome Statute system was designed with this in mind: as a court of last resort, the ICC is intended to focus on the handful of powerful planners of grave crimes while national courts try those who carried out the orders.

Such an approach would place Kenya at the forefront of global practice as far as the Rome Statute system is concerned. But more importantly, it would deliver better justice for the victims of the post-election violence, and strengthen the country’s ailing rule of law.

Written by Max du Plessis, senior research associate, International Crime in Africa Programme, ISS Pretoria and Associate Professor, University of KwaZulu-Natal.