On September 18, 2010 Kenyan Cabinet Minister Mutula Kilonzo questioned the International Criminal Court’s (ICC’s) right to investigate and prosecute Kenyan nationals for crimes committed during the post-election violence. Days later, Kenyan businessman Joseph Gathungu claimed that allowing the ICC to launch an investigation would violate the country’s newly-ratified constitution. But while these assertions state that the new constitution provides mechanisms sufficient to carry out such an investigation, the ICC has already determined that Kenya’s prior inaction shows an unwillingness to do so.

The assertions come in the wake of the ICC’s March 31, 2010 decision to initiate an investigation on crimes against humanity allegedly committed in the Republic of Kenya. The decision marked the first time that a prosecutor at the ICC initiated a case proprio motu (“by one’s own motion”) under Article 15 of the Rome Statute. Upon reviewing the Prosecutor Luis Moreno-Ocampo’s submission, a majority from Pre-Trial Chamber II found that the Prosecutor’s request met the “reasonable basis to proceed” set forth by Article 15(3) of the Rome Statute. On September 21, 2010 the Prosecutor announced plans to present two cases “against 4 to 6 individuals who according to the evidence, bear the greatest responsibility for the most serious crimes committed during Kenya’s 2007-2008 post election violence.”

Through its recent refusal to arrest the Sudanese President Omar al-Bashir, accused of committing genocide, war crimes, and crimes against humanity, Kenya challenged the authority of the ICC.  Kenya’s failure to arrest Bashir is a direct violation of the Rome Statute, the treaty that established the ICC. Kenya invited Bashir to attend the ceremony and subsequent celebrations accompanying the ratification of the Kenyan constitution on August 27.

Kilonzo’s argument addresses the foundation of the ICC’s jurisdiction to launch an investigation within Kenya. Regarding the ICC’s upcoming investigation, Kilonzo stated: “[W]e can say that Kenyan judges meet the best international standards. After that, I can even tell them not to admit the ICC case. Why on earth should a Kenyan go to The Hague?” This argument implicitly references Article 17 of the Rome Statute pertaining to admissibility. According to Article 17(1)(a), the ICC will determine that a case is admissible if “the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

Kilonzo’s statement implies that Kenya is able to carry out an investigation or prosecution. In order to effectively challenge the ICC’s jurisdiction, Kilonzo would have to demonstrate that Kenya can fulfill both the willing and able conditions, which could be difficult given Kenya’s lack of cooperation with the ICC to date. Even this could prove fruitless, as the Pre-Trial Chamber, in their March 2010 decision, cited the Appeals Chamber, which said, “in case of inaction, the question of unwillingness or inability does not arise.” Even if he were able to convince the ICC that Kenya is capable of carrying out an investigation, Kilonzo still has not illustrated Kenya’s willingness to do so.

Pursuing another avenue for legal action, Gathungu filed a lawsuit before Kenya’s High Court in which he states that Kenya’s new constitution does not allow the ICC to conduct an investigation in Kenya. His application goes on to say that “[t]he ICC is not provided for in the Constitution as an organ capable of either investigating any crimes occurring in Kenya or for that matter hear and determine (sic) the guilt or otherwise of any such alleged criminals.” Gathungu’s argument may find its genesis in Article 159(1) of the Constitution of Kenya, which states: “Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.”

Gathungu’s assertion, however, is not supported by Kenya’s constitution. Article 2(6) of the Constitution of Kenya provides: “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” As The Republic of Kenya became party to the Rome Statute on June 1, 2005, Article 2(6) of the Constitution requires that Kenya accept the ICC’s jurisdiction. Also, the Rome Statute provides rules with regard to the ICC’s jurisdiction over States Parties. Article 4(2) indicates that “The Court may exercise its functions and powers . . . on the territory of any State Party . . . .” Similarly, Article 12(1) states: “A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.”  In addition, Article 86 provides: “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

The legal basis for Kilonzo’s argument, as well as Gathungu’s, is questionable. Kilonzo’s challenge does not address the Kenya’s inaction in attempting to initiate an investigation or prosecution, while Gathungu’s does not adhere either to the Constitution of Kenya or the Rome Statute.  Perhaps these arguments serve as an expression of concern regarding the Prosecutor’s unprecedented use of proprio motu, or greater overarching concerns with the ICC, but they do not preclude the ICC from continuing its investigation of Kenya’s post-election violence.