Jurisdiction of the International Criminal Court and Kenyan Sovereign Rights
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Date
2020-02
Authors
Ndlela, Lainah
Journal Title
Journal ISSN
Volume Title
Publisher
Kenyatta University
Abstract
The notion underlying the jurisdiction of the International Criminal Court remains critical in the
formulation of the Rome statute. Proponents of the international court claim that the International
Criminal Court’s jurisdiction strengthens the international criminal law regime since it intervenes
in situations of international human rights violation regardless of national jurisdiction. On the
contrary, the Court’s opponents claim that it diminishes national sovereignty. This claim has
emerged in the context of the Court’s apparent focus on Africa. As of December 2017, twenty
three cases before the International Criminal Court pertained to crimes allegedly committed in
five African states, Kenya, Sudan (Darfur), Uganda, the Democratic Republic of Congo (DRC)
and the Central African Republic (CAR). This focus has led to claims that Africa has become a
victim of a politicised process that ignores human rights violations in more powerful and
resource rich states. Accordingly, the notion of International Criminal Court’s jurisdiction has
not boarded well with most African countries, who have claimed that the Court is undermining
sovereign rights. The central issue is the contestation between the scope of International Criminal
Court’s jurisdiction and sovereign rights. This contestation is highlighted against the background
of the indictment of former accused Uhuru Kenyatta and William Ruto for their alleged
involvement in crimes against humanity during the 2007/8 post election violence (PEV) in
Kenya. The opponents of the Court claim that by prosecuting the two, who later took the reigns
of power, amounted to usurping Kenyan sovereign rights. Kenya signed the Rome statute that
established the International Criminal Court on the 11th of August 1999 and ratified the same on
the 15th of March 2005. With the case before the International Criminal Court, Kenya challenged
the admissibility of the cases based on the complementarity principle of the International
Criminal Court and raised questions of sovereign rights infringement, after failing the
admissibility test This work enters into this debate by raising questions regarding the extent to
which the International Criminal Court’s intervention in Kenya violated Kenya’s sovereign
rights. Various views were therefore gathered from experts in international law, international
relations, foreign policy makers and politicians as well as ordinary citizens through
questionnaires and interview schedules. In addition to this, secondary data was obtained from
books, online sources, newspapers and general public opinions in various media. The data
gathered was then analysed and presented through headings and chapters. The current study
established that the jurisdiction of the International Criminal Court and Kenyan sovereign rights
has been shrouded and shaped by political feelings and political affiliations that existed during
the trial period. Moreso, African countries’ emerging resistance towards the Court greatly had a
bearing on how Kenya as a country and Kenyan citizens absorbed and interpreted the
intervention by the Court. Further to this perceptions and feelings from those who sympathized
with the accused and those who supported The Hague based Court ultimately shaped the notion
regarding the sovereignty of Kenya against the intervention of the International Criminal Court
Description
A Thesis in Partial Fulfilment of the Requirements for the Award of the Degree of Masters of Arts in International Relations and Diplomacy of Kenyatta University. February 2020
Keywords
Jurisdiction, International Criminal Court, Kenyan Sovereign Rights