Global Policy Forum

By Fred Oluoch

The Kenya government is headed for a major clash of interests with the United States following strong indications that the country will not sign the Bilateral Immunity Agreement meant to shield US soldiers from the International Criminal Court (ICC). At stake is unspecified US military aid to Kenya unless the government signs Article 98. Signing will result in unspecified financial rewards in addition to the country remaining in Washington's good books.

Kenya initially looked at the proposal favourably but it now seems that it has succumbed to pressure from various lobby groups that argue that supporting the US will not only sacrifice the country's sovereignty, but will also be a contradiction of the Rome Statute, which Kenya ratified in March. The US, in its opposition to the ICC, is concerned that its soldiers serving abroad could be targeted for frivolous and politically-motivated prosecutions at a time when the country is busy fighting global terrorism.

"There is no way Kenya can sign such an agreement because Kenya recently ratified the Rome Statute and all countries must submit to its jurisdiction irrespective of their peculiar circumstances," said Assistant Minister for Foreign Affairs Moses Wetangula. While declining to either confirm or deny whether Kenya has been under pressure from the US, Mr Wetangula added that the government ratified the statute without any reservations and its operations must be universal. "The Kenya government has no intention of exempting anybody or any country under any circumstances," he said.

Should Kenya manage to resist the US pressure, then it would join Tanzania and South Africa who have refused to play ball over the Bilateral Immunity Agreement, in which the US under Article 98 of the UN Charter, seeks to persuade "friendly" countries to make an undertaking not to surrender American soldiers who commit human-rights violations in their countries to the ICC.

Uganda is the only country in the East African Community trade bloc that has signed the agreement with the US, despite its own move to have Joseph Kony of the Lord's Resistance Army tried for human rights violations at the ICC. The Law Society of Kenya (LSK) says that the agreement amounts to double standards. Chairman Tom Ojienda said such an agreement is contrary to international law and would constitute a betrayal of the Kenyan people.

The US is on record as dismissing the ICC and this is clearly one of its major tools to destroy it and render it meaningless. Why should Kenya ratify the treaty and then be an accomplice to its destruction?" asked Mr Ojienda. He went on to point out that the agreement contravenes Article 18 of the Vienna Convention on the Law of Treaties, which states that countries that have ratified a treaty are obliged to refrain from acts that defeat the object and purpose of the treaty. "It is trite international law that a state cannot accept a treaty and then proceed to attack or weaken its substance, which is to turn over of human rights abuse suspects to the Hague," he said.

Kenya's Attorney-General Amos Wako recently deposited the instrument of ratification of the Rome Statute - which established the ICC in 1998 - at the United Nations Headquarters in New York. Mutula Kilonzo, a nominated Kanu MP, also argued that Kenya should stand firm and only react to good laws given that the US was in the past two decades perceived as being in the vanguard of human rights, rule of law and administration of justice and governance.

"The best thing the US can do is not to pressure countries like Kenya in its attempt to resist the ICC, but look for ways of improving the structure and the procedure at ICC so that no judge is tempted to use the ICC facilities for oppression." Mr Kilonzo noted that the US should not be suffering from a sense of guilt, but should take advantage of its unique position as the sole superpower to be in the forefront of respecting international law, "not resorting to the crude methods of the last century." He cautioned that Kenya will have to brace for the consequences of not siding with the US.

For lawyers and the LSK, the key issue is that signing the agreement with the US will mean the loss of EU support for any lawyer from Kenya ever getting a job at the ICC as a judge or prosecutor registry. "Clearly, this would hurt the long term economic interests of Kenya, perhaps superseding the aid that will be cut off by the US if we do not sign the agreement," said Mr Ojienda.