Kenya’s anti-ICC campaign
While the ICC proceedings against them were ongoing, Kenyatta and Ruto decided to run jointly in Kenya’s March 2013 presidential election, with Kenyatta elected president and Ruto his deputy. Both were accused of using the cases against them as platforms to frame the ICC’s interests in Kenya as western and of exploiting their official status to influence judicial proceedings at the ICC.
At the international level, Kenya attempted, but ultimately failed, to rally UN Security Council support in favor of deferring the ICC’s 2007-8 PEV cases. Kenya also appealed to fellow African Union (AU) members to collectively pressure the ICC, denouncing the ICC as a discriminatory institution and calling for withdrawal en masse if, for instance, official immunity was not recognized or the charges against Kenyatta and Ruto not withdrawn.
Threats to withdraw from the Rome Statute
At the national level, members of the Kenyan government repeatedly threatened to withdraw from the Rome Statute as part of Kenya’s plan to forestall the 2007-8 PEV cases. In September 2013, anti-ICC lawmakers introduced an unsuccessful vote on Kenya withdrawing from the ICC, repealing domestic international crimes legislation, and ceasing to cooperate with the Court. The plan was strongly opposed by the Coalition’s Kenyan, African, and international civil society members.
ASP sessions under intense pressure from Kenya
At the 12th ASP session in November 2013 and under intense pressure from Kenya, States Parties adopted changes to the Court’s Rules of Procedure and Evidence (RPE) regarding summonses to appear, allowing presence at trial to be excused for those fulfilling "extraordinary public duties at the highest national level." It remained with the ICC trial judges to decide on any request, taking into account factors such as the interests of justice and the nature of the hearing in question. The Coalition questioned the process that led to the changes.
The appearance of the accused in the courtroom via video-link, the use of prior recorded testimony during proceedings, and the discretion of trial judges to hold hearing outside The Hague were also made possible by the 2013 RPE amendments.
In the run-up to 13th ASP session in December 2014, civil society strongly opposed a proposal by Kenya to amend the Rome Statute to allow immunity for heads-of-state and high government officials.
At the 14th ASP session in November 2015, governments agreed to accommodate Kenya’s proposed agenda item on the application of RPE rule 68 on the use of prior-recorded witness testimony, an issue that was under appeal in the Ruto/Sang trial. While the session ended without any decisive action by states parties, governments agreed to include in the Assembly’s final report an interpretation of rule 68. The Coalition denounced the dangerous precedent set by attempting to politically influence issues under judicial review.
