Kenya refuses to hand suspects to International Criminal Court

The long-running dispute between Kenya and the International Criminal Court intensified on Thursday when Nairobi said it would not hand over three people wanted by The Hague and demanded the chief prosecutor’s powers be diluted. 

Githu Muigai, Kenya’s attorney-general, said the government wanted the ICC to transfer to Kenyan authorities the files of three men accused of interfering with witnesses in several cases so they could be prosecuted domestically.

These cases included those involving President Uhuru Kenyatta and his deputy, William Ruto.

Both Mr Kenyatta and Mr Ruto were charged by the ICC in relation to widespread violence after Kenya’s 2007 presidential election but neither was tried, in part because judges and prosecutors there had alleged interference with witnesses.

The African Union is debating whether it should recommend its members withdraw from the ICC. There is a widespread perception across the continent, reinforced by neither the Kenyatta nor Ruto cases going to trial, that the court, and particularly the prosecutors, are picking on Africans. Until late last year all the ICC cases since its establishment in 2002 involved African defendants. 

Many of the three-dozen African members of the ICC have said they will pull out if the court is not reformed to be more impartial and competent. Diplomats say the court needs to address African concerns because an exodus would significantly undermine its credibility. 

Detailing Kenya’s reform demands, Mr Muigai said on Thursday the office of the ICC chief prosecutor should be “more accountable”. “We have found that both in the practice and the jurisprudence of the court the prosecutor has always enjoyed privileged powers not allowed in any other criminal justice system in the democratic world.” 

He also called for the court to be more transparent. “We want to see more involvement with sovereign governments that are co-operating with the court.” 

The ICC rejected calls for the chief prosecutor’s powers to be amended. 

“It’s important to have a strong and independent prosecutor, albeit one that’s subject to the control of the judges,” said the ICC, adding that when the Rome Statute, which established the court, was drawn up in 1998 “African states insisted on having a strong and independent prosecutor”. 

The ICC said it had yet to receive an official request for the cases where there was alleged tampering with witnesses to be transferred to Kenya. “Should there be a request, it will be considered by the judges based on the legal issues involved.” 

Mr Muigai insisted that Kenya’s legal system, which has undergone reform in the past few years, was competent to try Walter Barasa, Paul Gicheru and Philip Kipkoech, the three men suspected of witness tampering, although he admitted that the international crimes division of the Kenyan high court had yet to be established. 

“This court will be set up in the very, very near future,” he said of the process, which has already taken four years to establish. “We expect it to happen in a very few weeks.”