Introduction
The adoption of the International Criminal Court’s (ICC) founding treaty, the Rome Statute, formally initiated the ratification process that brought the ICC into existence. Perhaps more significantly, it also inaugurated a far-ranging effort to embed the Statute in the domestic legal framework of states. As one legal scholar has ambitiously characterised it, the Statute was a ‘quasi-legislative event that produced a criminal code for the world’.Footnote 1 Conceived and led largely by the same global civil society network that had pressed for the Court’s establishment,Footnote 2 these campaigns for national implementation have been intimately linked to the principle of complementarity. The Coalition for the International Criminal Court (CICC) notes that, ‘For the principle of complementarity to become truly effective, following ratification, States must also implement all of the crimes under the Rome Statute into domestic legislation.’Footnote 3 Similarly, Amnesty International claims that a state that fails to enact national legislation ‘would risk being considered unable and unwilling genuinely to investigate and prosecute crimes within the Court’s jurisdiction’.Footnote 4 By connecting complementarity to implementation, the ICC, it is thought, will catalyse the development of a more robust national framework for prosecuting international crimes.Footnote 5
This chapter undertakes a close examination of the Rome Statute’s implementation in the domestic jurisdictions of Kenya and Uganda.Footnote 6 Its contention is two-fold. First, implementation has become an increasingly sophisticated exercise in applying the Statute as a ‘global script’ to a diverse array of national contexts.Footnote 7 NGOs, advisors and legal consultants who offer counsel to states on how to reform their domestic legal and constitutional frameworks have each developed Rome Statute ‘model laws’ and implementation ‘toolkits’. This growing ‘transnational expert community’Footnote 8 has, in turn, engendered an increasingly strict interpretation of what complementarity purportedly requires: it reflects a desire for uniformity between the Statute and its application at the domestic level.
Second, the ICC itself did not catalyse the passage of national implementation legislation in Kenya or Uganda. Rather, implementation of the Statute in both countries was accelerated in order to ‘perform’ complementarity for predominantly international audiences. In Uganda, the country’s role as host of the 2010 Review Conference of the Rome Statute (‘ICC Review Conference’) hastened a legislative process that had long stagnated, while, in Kenya, the desire to publicly demonstrate a departure from the election violence of 2007–2008 ‘fast-tracked’ implementation of the Statute there. In Uganda, however, subsequent efforts to abandon the country’s long-standing amnesty program have been met with strong opposition, signalling significant discomfort with the domestic ICC legislation’s retributive framework. Similarly, in Kenya, the initiation of ICC investigations in 2009 fractured the apparent unanimity of the country’s political class over the desirability of the domestic legislation it had ratified only one year prior, even as they united former political rivals Uhuru Kenyatta and William Ruto.Footnote 9
The union of these two factors – uniformity of application and the power of external constituencies – was largely responsible for driving the implementation process in both countries, but it glossed over deeper political fissures about the desirability of international criminal law as a framework for domestic accountability. These political contestations were subordinated in the short term, but have never abated. Further, the focus on identical implementation of the Rome Statute at national level raises troubling questions about the African continent’s equal and consensual participation in the creation of this body of law. Rather than focusing on implementation as a ‘catalytic effect’Footnote 10 in itself, then, this chapter queries the costs that ‘a liberal orthodoxy about what international criminal law should be’Footnote 11 might pose to other normative ideals, such as legal pluralism or deliberative, democratic debate.
This chapter proceeds in four parts. It first briefly identifies the arguments that have animated why implementation of the Rome Statute’s substantive and procedural provisions should be understood as a duty of ICC member states, even when, as a legal matter, it is not clear that such an obligation exists. The second section focuses on how international NGOs and the capacity-building sector – communities of practice with a shared interest in implementation – have drawn on these arguments in their promotion of implementation guidelines and ‘model laws’. I suggest that these tools have contributed to a view of implementation as an increasingly disciplinary exercise, one that privileges conformity with the Rome Statute. Through process tracing, part three turns to the particular experiences of Uganda and Kenya to show how, in each country, it was not the ICC, but the mediated influence of external actors and events that pushed the implementation process forward. However, as the fourth section illustrates, key political questions that were overlooked in this process soon re-emerged. Based on these histories, the chapter concludes by focusing on three dimensions of implementation: as purity, as politics, and as a form of political theatre.
A duty to implement?
The incorporation of treaty protections is one form that the legal protection of human rights may take at the domestic level. Implementation thus reinforces not only the primacy of states in international law but also a general rule: states, in general, have far-going freedom as to the manner in which they give effect to their international obligations. As Ward Ferdinandusse argues, however, the extent of this freedom can be ‘easily overestimate[d]’, particularly in the context of international criminal law.Footnote 12 Many scholars have argued that the special character of international humanitarian law distinguishes it from other crimes, thus requiring greater fidelity to the manner of its implementation at the national level. Similar arguments point to the uniquely expressivist function of international criminal law as requiring its identical enunciation in national law.Footnote 13
The Rome Statute has become a growing site of contestation over the duty and scope of states to implement its provisions in their own domestic legal orders. Many commentators root a duty to implement in a purposive reading of the Rome Statute, particularly its preambular language, which recalls ‘that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’.Footnote 14 For example, David Donat Cattin, secretary-general of the influential Parliamentarians for Global Action (PGA), argues that the principle of complementarity ‘implies that States shall fully implement the Rome Statute in their domestic legal orders in order to comply with their primary responsibility to realize the object and purpose of the treaty (and [Rome Statute] system)’, which is ‘to put an end to the impunity of the [individual] perpetrators of the most serious crimes of concern to the international community as a whole and to contribute to the prevention of such crimes’.Footnote 15
Yet the text of the Statute requires only that a country’s domestic law facilitate cooperation with the ICC and that it criminalise offences against the ‘administration of justice’.Footnote 16 There is no obligation as such to implement its substantive (or procedural) provisions. As Alain Pellet notes, ‘neither the signatory States nor even the States Parties have any clear obligations to bring their domestic legislation into harmony with the basic provisions of the Rome Statute’.Footnote 17 Furthermore, as a matter of treaty interpretation, the preambular recital is not part of the Statute’s operative text; rather, it merely ‘recalls’ a suggested pre-existing duty, not one arising from the treaty itself.Footnote 18 Thus, while states may be obliged to investigate or prosecute crimes based on other rules of international law, it would appear, as Sarah Nouwen has argued, that the recital ‘merely reflects an aspiration, just like many of the other preambular considerations’.Footnote 19
The difference between ‘ordinary’ and international crimes has also been advanced as a basis for domestic implementation. In the context of the ICC, the academic Jann Kleffner has been one of the strongest proponents of this position. He argues that, ‘Implementation can only be considered satisfactory if it comprehensively and effectively covers the entire range of conduct criminalized by the Rome Statute, without adversely affecting pre-existing obligations under international law that go beyond the Rome Statute, and while taking into account the need to fill gaps in the legislation that may lead to impunity, such as those resulting from the absence of universal jurisdiction.’Footnote 20 ICC actors have endorsed Kleffner’s view. Sylvana Arbia, the ICC’s former registrar, writes that, ‘Without [implementing legislation], states could be left in the position of prosecuting only for some of the constitutive acts of the crimes, such as murder and rape. This could undermine the basis of national prosecutions, and may invite the ICC’s Judges to take jurisdiction where this might not be needed.’Footnote 21
Distinguishing between ordinary and international crimes was critical to the criminal tribunals for Rwanda and the former Yugoslavia, both of which, unlike the ICC, enjoy primacy over national jurisdictions.Footnote 22 The Rome Statute, however, makes no such distinction: states are permitted to prosecute international crimes as ordinary crimes, provided that their doing so is not deliberately designed to shield perpetrators from criminal responsibility. Indeed, during the drafting of Article 20(3) on ne bis in idem (the principle that a person should not be prosecuted more than once for the same criminal conduct), states explicitly rejected a proposal that would have made a case admissible before the ICC where the national proceeding failed to consider the international character or grave nature of a crime.Footnote 23 For this reason, the Statute instead refers to the ‘same conduct’ of an accused, ‘to make clear that a national prosecution of a crime – international or ordinary – did not prohibit ICC retrial for charges based on different conduct’.Footnote 24 Article 93(10) further supports this interpretation, as it refers to the Court providing assistance to a state party ‘conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crimes under the national law of the requesting State’.Footnote 25
Finally, implementation discourse reflects anxieties about fragmentation in international law more generally.Footnote 26 As Carsten Stahn and Larissa van den Herik note, ‘One of the inherent features of international criminal law is a desire for uniformity’, which ‘flows from the need for “certainty, stability and predictability” [that] is required in criminal proceedings’.Footnote 27 A related concept is that the Statute establishes a common criminal floor. Cattin, for instance, sees the Statute as posing a ‘minimum standard for national criminal justice systems exercising their primary responsibility: States can do more, but shall do no less, than what the Rome Statute prescribes, so as to ensure that all crimes against humanity, war crimes and acts of genocide be duly incorporated in the relevant legal order and not left unpunished.’Footnote 28 The fact that international criminal law enforcement is increasingly migrating from international tribunals to national courts makes the idea of minimum standards (often referred to as ‘international standards’) particularly attractive when the ‘landscape of domestic justice is diverse and partly schizophrenic’.Footnote 29 To that end, ‘the play between … unity and diversity, is one of the discursive patterns used by the [legal] discipline to deploy criticism and propose reform projects’.Footnote 30 Faithful domestication of the Rome Statute, as the following section details, is one such project.
Implementation and standardisation
While implementation is itself a political process – an act of state – human rights NGOs, particularly international ones, have played a significant role in influencing debates about what domestication of the Rome Statute requires.Footnote 31 Many of these organisations maintain offices in ICC situation countries, creating a vital, vertical network between those sites where international criminal law is produced – The Hague, Brussels, Geneva, New York – and enacted. There now exists an array of implementation materials prepared by these organisations. As early as 2000, Amnesty International created a ‘Checklist for Effective Implementation’, while Human Rights Watch and the International Centre for Criminal Law Reform published similar manuals shortly thereafter.Footnote 32 As part of its ‘Global Advocacy Campaign for the International Criminal Court’, the CICC maintains a detailed, on-going chart of those states that have either enacted, or are in the process of enacting, ‘Rome Statute Crimes Legislation’ and/or ‘Cooperation Legislation’.Footnote 33 The coalition also includes a resource page with links to ‘model’ national implementation laws, as well as ‘template statutes’ endorsed by various regional organisations like the Commonwealth Secretariat.Footnote 34
The Commonwealth’s Model Law – of particular relevance to Kenya and Uganda – is a 58-page document with prepared language that closely tracks the text of the Rome Statute. While noting that, ‘there is no “one-size-fits-all” solution to the complex process of domestic implementation’, the Law presents itself as ‘model legislation (i.e. a textual basis to be modified and adapted to a given national system)’.Footnote 35 Interested states are invited to insert the name of their country at relevant points throughout the document, and to include select optional additional provisions, ranging from the appropriate penalties for crimes (‘imprisonment for a term not exceeding 30 years or a term of life imprisonment when justified by the extreme gravity of the crime’) to extending the law’s coverage to violations of the Geneva Conventions.Footnote 36
Various ‘best practice’ tools for implementation supplement such material. One such tool is the National Implementing Legislation Database (NILD). NILD seeks to provide users with ‘access to a fully-searchable, relational database of national implementing legislation’.Footnote 37 Part of the ICC’s Legal Tools project,Footnote 38 NILD describes itself as ‘an invaluable tool for national legislators who have not yet adopted, but are considering or drafting implementing legislation, enhancing their capability to draft effective legislation drawing upon previous experience of fellow State Parties’.Footnote 39 NILD further allows states that have adopted legislation to ‘monitor the impact of their legislation on other States and undertake necessary amendments if the content of the Rome Statute changes, or if improvements are deemed necessary’.Footnote 40 One publication highlights not only NILD but also other Legal Tools projects as well – Case Matrix, a Means of Proof Digest – as examples of access to legal information. It notes that such access ‘should be provided in line with this new paradigm shift towards positive complementarity that focuses on strengthening domestic capacity and empowering national actors’.Footnote 41
These tools accompany the literature of NGOs, which endorses a similarly maximalist approach to implementation. According to Amnesty’s implementation checklist, ‘principles of criminal responsibility in national legislation should be at least as strict as … the Rome Statute’.Footnote 42 This includes, for instance, that ‘all crimes of accessory criminal responsibility such as aiding, abetting, and direct and public incitement as contained in Article 25 [of the Statute] should be punishable under national law’.Footnote 43 Conformity with the Statute has also been presented as encompassing far-reaching procedural requirements: Human Rights Watch notes that states ‘should guarantee the highest international standards for fair trials at the national level’, as ‘these rights will … be important in the determination of the admissibility of a case by the ICC’.Footnote 44 Such standards would include not only programs of victim and witness protection but even procedural regimes unique to the Rome Statute, such as a trust fund for victims or provisions for victim participation. A related issue is punishment: effective implementation, it is strongly suggested, would be inconsistent with the death penalty.Footnote 45
These documents illustrate that even where commentators and NGOs acknowledge that the Rome Statute contains no positive obligations to implement its substantive (or procedural) law provisions, the principle of complementarity is presented in a manner that nevertheless compels it. As a technique of governance, the approach to implementation is thus increasingly disciplinary: failure to abide by the purported requirements of the Rome Statute opens states up to the risk that the ICC will intervene. This view has been furthered by much academic commentary on implementation (noted above), which overwhelmingly focuses on fidelity to the Rome Statute’s text.Footnote 46 Thus, just as the coercive pull of complementarity – welcomed by those who see its outcome as salutary – could encourage national proceedings, it might also ‘induce national courts … to conform to a variety of modalities that mimic those found in international criminal law regarding sanction (i.e., no death penalty) and procedure (i.e., a fair trial)’.Footnote 47 The proliferation of ‘model laws’ abets this process. Indeed, as will be seen, the Kenyan and Ugandan ICC laws are themselves largely identical, insofar as they are both drawn from the Commonwealth Secretariat’s model legislation.
Implementation in practice: Uganda and Kenya
Uganda: the ICC’s host state
Like many treaties that Uganda has signed but not domesticated, Nouwen argues that the government ratified the Rome Statute in June 2002 because it was ‘internationally fashionable and improved the [government’s] image in the eyes of European donors’.Footnote 48 The adoption of implementing legislation at the time appeared ‘bleak’, however, as it was not seen as a priority for either the executive or the legislature. Nevertheless, as a result of the attention increasingly paid to the government’s conflict with the Lord’s Resistance Army (LRA), and following President Museveni’s referral of that situation to the ICC in 2003 (making it the first country to come under the Court’s jurisdiction), international human rights organisations and their national-level partners prioritised implementation of the Statute there.
After receiving authorisation to prepare a draft implementation bill, Uganda’s Ministry of Justice and Constitutional Affairs assembled a first draft in 2004. It used Canada’s and New Zealand’s ICC legislation as examples, and the Commonwealth Secretariat reportedly provided ‘technical support’ and ‘drafting assistance’.Footnote 49 Groups like PGA also ‘conducted seminars and workshops on the Rome Statute for MPs, and facilitated relevant contacts for them with others, including the European Union, the ICC and local civil society’.Footnote 50 Yet political developments on the ground soon stalled any desire to press for the ICC Bill’s passage. After the ICC’s warrants for the LRA’s leaders were unsealed in mid-2005, the legislation was seen, much like the Court itself, as a hindrance to the advancement of peace negotiations. As explained in a letter by the Uganda Coalition for the International Criminal Court (UCICC) for its ‘Domestication Campaign 2008’, the bill had ‘been proposed and has lapsed in Parliament before because too many legislators feared that adopting these laws means that the ICC would take jurisdiction away from Uganda and potentially interrupt the peace process’.Footnote 51 Preparations for multi-party elections in 2006, along with ‘backlogs in Parliament’,Footnote 52 further delayed consideration of the bill and it ultimately lapsed with the prorogation of parliament.
A substantially similar version of the bill was reintroduced in late 2006.Footnote 53 The executive, however, ‘prioritised commercial laws for debate’ and commentators have noted that parliament was instructed to ‘go slow’ with the legislation because its passage was still ‘thought to send the wrong message in relation to the ongoing Juba talks’.Footnote 54 As the then deputy attorney general Freddie Ruhindi testified during parliamentary debate over what would become the 2010 act:
[T]he long time taken on deliberating on this matter was not by accident. Interestingly, we are not even recalling that the first one was a 2004 Bill, which lapsed with the Seventh Parliament. Then we came out with the Seventh Parliament. Then we came out with the 2006 Bill and at one point, you may recall that we were in very serious negotiations with the Kony group and everyone of us was actually quite reluctant to disturb that process by coming on the Floor of the House and at the end of the day derailing the process. But as we speak, that has gone bad and there is nothing to stop us from going ahead with the enactment of this law in full swing.Footnote 55
Thus, whereas there were a variety of competing and superior interests during the previous six years that implementation of legislation was pending, this calculus had shifted by 2010. Peace negotiations were no longer a confounding variable, while the imminent arrival of delegates from around the world to Kampala for the first-ever ‘Review Conference of the Rome Statute’ provided the necessary push for adoption.Footnote 56
The significance of Uganda’s hosting the conference is evident from public documents. During the bill’s second reading, Ruhindi noted that, ‘on the sidelines of the substantive debate on this Bill, Uganda is privileged … [to] be hosting the first ever review conference’.Footnote 57 In its annual report, the Justice Law and Order Sector (JLOS) – a government mechanism operating a ‘sector-wide approach’ to donor-driven judicial reform – stated that, ‘one of the conditions that was set by the ICC to allow [Uganda] to host the conference was domestication of the Rome Statute’.Footnote 58 Mirjam Blaak, Uganda’s ambassador to The Hague, confirms this view: in her words, ‘It was important to have the bill signed before the review conference took place. They wouldn’t have cancelled the review conference if it hadn’t been, but it was an understanding that we would.’Footnote 59
In the end, the act as passed in 2010 was nearly identical to the version that was put forward almost six years before.Footnote 60 Substantively, the ICC Act proscribes war crimes, genocide and crimes against humanity in a manner identical to the Rome Statute; the latter’s definitions were incorporated by reference into the act, as were the modes of responsibility and the Statute’s ‘general principles of criminal law’.Footnote 61 This mirror imaging belied the concerns of some parliamentarians, however, who in an otherwise non-contentious debate raised questions about the scope of the Rome Statute’s protection and whether Uganda was entitled to amend it. Geofrey Ekanya, an MP from Tororo County, asked:
I want to find out from the Attorney-General and the committee chairperson, what harm would it cause to expand the definition of the Bill as regards the crimes against humanity, to include plunder. As we speak now, the international community has been facilitating some countries to plunder natural resources in Africa and I think this should be part of the crimes against humanity. I am talking about DRC, for example; I am talking about the conflicts we had in other parts of Africa. The guns come from the West to facilitate conflicts; to plunder Africa and then they take the minerals; but the Bill does not talk about those who facilitate plundering because this is what leads to conflict and finally crimes against humanity. So, would it be wrong for us to expand the definition of crimes against humanity to include the agents who facilitate plunder?Footnote 62
Ekanya also expressed concern that ‘certain provisions within the Rome Statute’ – particularly concerning presidential immunity – were ‘not in consonance’ with Ugandan law, and urged that these questions be ‘taken care of so that we and innocent people are not used as guinea pigs’.Footnote 63 Other MPs raised similar concerns: John Kawanga agreed that, ‘at another stage we shall have to deal with commercial crime, corruption and things of the kind’, while Alice Alaso asked what passage of the law would ‘mean with our amnesty law’, whether it would ‘put the final nail on the peace process’, and ‘the place of traditional justice vis-à-vis the ICC Bill’.Footnote 64
The interventions of these MPs raised questions about the place of the ICC Act within Uganda’s broader transitional justice architecture, as well as the state’s ability to tailor the Statute to suit its particular national context. In reply to Ekanya’s concerns, MP Stephen Tashobya, who chaired the Committee on Legal and Parliamentary Affairs, replied (incorrectly) that ‘you may not actually go beyond what [the Rome Statute] says and, therefore, you have to confine yourself’ to its text.Footnote 65 Furthermore, as Ms Alaso’s comments indicate, the bill as passed offered no provisions on alternative criminal justice proceedings, nor did it address the role of Uganda’s Amnesty Committee, which had been issuing amnesties to former combatants, including those from the LRA, for the past 10 years.Footnote 66 Indeed, whereas the 2004 version of the ICC Bill included a proposed amendment by MP Jacob Oulanyah that would have recognised ‘alternative criminal justice proceedings’ in addition to ‘formal’ criminal proceedings,Footnote 67 no such proposals were later considered or debated. This suggests that, by 2010, an increasingly Hague-centric framework for punishment had taken hold, hastened by a perceived need to pass the legislation prior to the start of the ICC Review Conference.
A similar mindset informed the influential network of Ugandan justice sector donors. Stephen Oola notes, for example, that an initial agreement by JLOS to present to parliament in 2009 the ICC Bill together with a proposed National Reconciliation Bill – in order to generate a ‘comprehensive national discussion on Uganda’s justice needs’ – was scuttled when donor governments made it clear that they wanted the ICC Bill fast-tracked.Footnote 68 As a result, Oola argues that ‘the ICC Act was rushed through Parliament with little consultation and without much-needed acknowledgment of the domestic legal reality, given the existence of the Amnesty Act’.Footnote 69
Kenya: ‘becoming a global village’?
As in Uganda, international pressure was a key dynamic that drove the passage of Kenya’s domestic implementing legislation. Following the election of President Mwai Kibaki in 2002, the government ratified (as an executive act) the Rome Statute in 2005. Little is known about the administration’s intentions in choosing to do so other than that, in the wake of an ostensibly reformist political moment, ratification of the Statute was seen as a positive step by the new administration. One prominent Kenyan activist described the ratification as ‘one of those things you do to look good’,Footnote 70 while Yvonne Dutton’s analysis suggests that Kenya’s classification as a democracy in the post-Kibaki era played a role in the government’s decision to join the Court.Footnote 71 International NGOs also seized on the moment. The CICC, for instance, chose Kenya as a target country on which to focus its efforts, noting that ratification would send an ‘important signal to other African states who have yet to ratify about Africa’s growing commitment to international justice and the rule of law’.Footnote 72
At the time, Kenya did not have any laws in place that would have enabled it to prosecute international crimes as such. Neither the Kenyan Penal Code (KPC) nor the Armed Forces Act, which governs the Kenyan military, contained any such provisions, nor had a Kenyan court ever dealt with crimes against humanity, war crimes and genocide.Footnote 73 Following ratification, then, the Kenyan National Commission on Human Rights began drafting a bill that sought to implement provisions of the Statute domestically. At the time, however, the country was also undergoing its constitutional review process, with a referendum set for November 2005. As a result, the draft International Crimes Bill was temporarily shelved. It went through an initial reading in parliament in June 2006 but, before it could proceed further, the 2007 elections had arrived.
In the wake of the electoral violence, a process that might have otherwise proceeded as a quiet, internal manner was quickly internationalised. Following its hearings, a key recommendation of the Commission of Inquiry on Post-Election Violence (known also as the ‘Waki Commission’) was that implementation of the Rome Statute be ‘fast-tracked for enactment by Parliament to facilitate investigation and prosecution of crimes against humanity’.Footnote 74 Likewise, as Antonina Okuta notes, the commission’s recommendation that a special local tribunal be created to try the alleged perpetrators brought ‘into sharp focus the country’s national legislation as well as its capacity to handle the investigation and prosecution of international crimes’.Footnote 75
As in Uganda, the Commonwealth Secretariat played an influential role in the drafting process. At the bill’s second reading in May 2008, Kenya’s then attorney general Amos Wako stated that the government had been ‘well guided’ by the United Nations and the Commonwealth Secretariat, which had ‘developed model legislation to guide the countries’.Footnote 76 He continued:
Mr. Speaker, Sir, we talk about the world being a global village. It is, indeed, becoming a global village, whether it is from the perspective of communications; that is telephones, mobile phones, television and so on, but for institutions such as the national State and so on. Also, from the point of view of issues relating to law and order, there can be no state as such which does not have a criminal justice system. Therefore, to the extent that the international community is developing an international criminal justice system, we are indeed and truly becoming a global village.Footnote 77
Reflecting the perception that states are legally bound to implement the Statute, Wako added in his remarks that, ‘[B]y the mere fact we have ratified this Rome Treaty, we are, as a State, under an obligation to domesticate the Treaty, so that it has a force of law in Kenya.’Footnote 78
Remarkably, the parliamentary debate on the International Crimes Act (ICA) records no opposition to its passage. The attorney general’s proposal was supported by MP Martha Karua, then minister for Justice, National Cohesion and Constitutional Affairs, as well as MP Danson Mungatana, who ‘[took] the opportunity to thank the Attorney-General for, once again, rising to the occasion and bringing our country’s laws in line with the international community, especially in criminal jurisprudence’.Footnote 79 MP Farah Maalim, a leading figure in the Orange Democratic Movement and himself a member of PGA, made the most extensive remarks on the bill, supporting its passage but expressing scepticism about the limitations of international criminal law. In particular, Maalim endorsed the ‘need to redefine … the definition of the UN of what genocide is’, calling for it to encompass ‘cultural’ and ‘economic’ genocide.Footnote 80 In his words:
It is easier for the West to arm, facilitate and finance the warlords, while they take away the timber from the Congo Forest. All these raw materials end up in the West. The money [that] is stolen from the continent often ends up in Switzerland, American and European banks. … Economic genocide should have been included in the Statute more than anything else. The permanent impoverishment of the black man, the slavery and the colonization that we suffered is still what keeps us where we are. There has been no compensation and responsibility for what happened. The context of the Statute tells us how little the black continent participated in the formulation of this Statute.Footnote 81
Maalim further lamented the absence of Kiswahili ‘as one of the languages of the ICC’. He opined: ‘I have seen that they have included Russian, Spanish, Arabic, English and Chinese. There are more speakers of Kiswahili than Russian. Our own Governments, and the continental body, would have been done a lot of pride if we also had Kiswahili as one of the languages in the ICC.’Footnote 82
Despite MP Maalim’s remarks, the ICA, as a model for the Ugandan legislation that followed, imports directly almost all provisions of the Rome Statute. It refers entirely to the Statute’s definition of international crimes,Footnote 83 while provisions on command responsibility, statutes of limitation and superior orders are likewise directly imported.Footnote 84 Similarly, the act provides that the maximum penalty for Rome Statute crimes is life imprisonment, even though the penal code maintains the death penalty for ordinary crimes such as murder, armed robbery and treason.Footnote 85
The ICA was tabled and passed with remarkable speed, coming into operation on 1 January 2009. As in Uganda, it is one of the few international treaties to be domesticated into Kenya’s national law. Standing in support, MP Ekwee Ethuro took note of the ICA’s rapid passage:
I am aware of many of the international protocols and statutes that have been consented to by the Government, that have not seen the Floor of this House. That is not the proper way to do it. I want to believe the business of knee-jack reaction–Maybe the greatest motivation of the International Crimes Bill to even see the walls of this House, is a consideration of what we have gone through in terms of the Waki Report. … All the protocols and any other international protocols that the Government of Kenya has committed itself to should be domesticated.Footnote 86
Surfacing political discomforts: post-implementation domestic politics
Uganda: the end of amnesty?
In Uganda, parliament’s rushed support for the ICC Act’s passage – seen at the time as a symbolic precondition for hosting the 2010 Review Conference – soon gave way to a deeper set of political concerns over the future of the Amnesty Act and, by extension, to the dominance of the complementarity framework. This was not surprising. Uganda had passed the Amnesty Act in 2000, within a year of its first signing the Rome Statute, but ‘without considering any possible inconsistency in obligations’.Footnote 87 Furthermore, while some MPs had raised questions about amnesty’s future in light of the ICC Act, at the time Attorney General Ruhindi had assured them that, ‘International criminal justice does not throw away our own initiatives to try some of these renegades.’ He noted, correctly, that ‘you can actually have amnesty internally or domestically under the complementarity principle’.Footnote 88 Nevertheless, the possibility of conflict was apparent. What might happen, for instance, if an amnesty applicant became a target for domestic prosecution under Ugandan law?
This precise question confronted parliament only one month after the ICC Act’s passage, when the executive sought a ‘carve out’ declaration for the eligibility of four individuals to receive amnesty: Thomas Kwoyelo, a former LRA combatant, and three of the ICC’s named suspects. The Minister of State for Internal Affairs purportedly sought the exemption because these individuals ‘have been engaged and continue to engage in acts that are contrary to international standards and are rebellious and injurious to the citizens of this country and the neighbouring states’.Footnote 89 At this point Ugandan authorities had already seized Kwoyelo and he had in fact applied for amnesty under the existing law. This led one MP who opposed the government’s motion to note that it was in a ‘catch-22’ situation:
The minister is telling us that the fourth person [Kwoyelo] is already in the hands of the security agencies; they do not know what to do with him. Actually, they just want us to pass this request so that they can have this person prosecuted, because they can’t grant him amnesty; they can’t release him, and they can’t take him to court while the peace process is going on. Why should we operate like that?Footnote 90
Another MP from northern Uganda raised similar objections, expressing confusion as to the criteria used in selecting Kwoyelo for prosecution.Footnote 91 She added:
Now, I want to know the effects of the declaration beyond the indictment. Suppose tomorrow, Kony comes out and says, ‘I want to sign for amnesty and I will stop all this suffering for the people of Sudan, DRC and for the people of Central African Republic.’ What will be the political decision of Uganda, DRC and Sudan for the sake of their people, what will be the effect of this? Is this decision written in stone, or can it be undone?Footnote 92
In the end, the Ministry withdrew its motion; however, the failed attempt soon inaugurated a more concerted effort to cease the issuing of amnesties entirely. Indeed, although amnesty remained strongly supported by Ugandans in the north and amongst their political representatives, its continuance increasingly conflicted with Uganda’s carefully crafted image as a ‘complementarity state’. JLOS, for instance, which was meant to act as a ‘neutral’ justice coordinator, undertook a more aggressive effort to discontinue the act, arguing that it was incompatible with Uganda’s obligations under international law.Footnote 93
A more urgent crisis thus presented itself in late 2012, when the Ministry of the Interior did not renew Part II of the Amnesty Act, which was the provision that empowered the commission to grant amnesties. The provision’s lapsing – largely understood as a response to the Ugandan Constitutional Court’s halting of Kwoyelo’s trial in September 2011, on the grounds that he was entitled to amnestyFootnote 94 – was met with intense opposition. Oola notes that it ‘angered many victims and leaders from the conflict affected sub-regions in northern Uganda’, so much that local leaders and domestic civil society groups petitioned the Speaker of Parliament, condemning the ‘illegal and unconstitutional manner’ in which the amnesty provision had been removed.Footnote 95 Ultimately, the matter was referred to the Parliamentary Committee on Defence and Internal Affairs, which proceeded to undertake extensive consultations with key stakeholders.
In its final, 45-page report, published in August 2013, the committee concluded that the lapsing of Part II of the Act was ‘premature and out of step with the sentiments of affected communities’, and recommended that it be ‘restore[d] in its entirety’.Footnote 96 Far more than the debate over the ICC Act, the committee’s report surfaces the complexity of Uganda’s post-conflict landscape. It reviews, for instance, the arguments in favour of amnesty – the fact that ‘the vast majority of rebels were forcibly abducted, many at a very tender age’; the concern that there is ‘now no legal protection for returnees from prosecution’ – and assesses the executive branch’s contention that the granting of amnesty ‘was inconsistent with the Rome Statute of the International Criminal Court (1998) (domesticated in Uganda in 2010)’.Footnote 97 It notes that JLOS and the UCICC played a leading role in advancing this argument, along with ‘diverse external pressure from some of Uganda’s development partners as well as agencies of the United Nations and other international commentators who have policy objections to the amnesty’.Footnote 98 In the committee’s view, these external actors ‘appear to have exerted a disproportional influence on the Executive’s approach to the amnesty issue, by promoting their own policy preferences’.Footnote 99
The committee’s conclusions also dispel a number of the misconceptions about complementarity’s obligations. It notes, for instance, that there ‘is in fact no provision of [the Rome Statute] which outlaws amnesties, neither does the Statute impose any express obligations upon states to prosecute relevant crimes’.Footnote 100 It further notes the common view encountered by committee members that the Statute ‘imposes upon states parties a general obligation to establish international crimes courts and to introduce criminal legislation in order to prosecute ICC crimes nationally’.Footnote 101 In perhaps its strongest passage, the report concludes:
There is … a broader political issue at stake here, which relates not only to Uganda, but generally to the African continent: it concerns the extent to which African values and priorities inform the content of international law. There is a greater need for African states to be more assertive in ensuring that their values are reflected in the development of international law.Footnote 102
Following the committee’s conclusions, the Amnesty Act was reinstated in its entirety (at the time, through May 2015).
Kenya: a return to the political
The politically contested nature of amnesty in Uganda, and the relative detachment of that debate from the ICC Act’s passage, resonates in the Kenyan context as well. There, the swift approval of the ICA was soon followed by political stalemate on an attendant institutional question: whether or not to establish a Special Tribunal for Kenya (STK), which would be empowered to retroactively judge alleged perpetrators of the election violence. Unlike the ICA, which saw minimal debate as to the incorporation of its substantial obligations into Kenya’s legal framework, the STK Bill was deeply contested. Parliamentarians rejected the overt directives of the executive to vote in favour of the tribunal’s establishment, raising questions about its comportment with the Kenyan Constitution as well as the risk of creating a parallel structure to the country’s broader legal system.Footnote 103
The defeat of the STK Bill was largely the product of an ‘unholy alliance’ between politicians who feared that genuine, independent domestic proceedings would never be possible through Kenyan courts, and those who saw such a tribunal, at the time, as a greater threat than the ICC itself.Footnote 104 As Lydiah Kemunto Bosire notes, the failure of the Waki Commission’s report to trigger a domestic judicial response ‘resulted in part from the fact that domestic actors perceived the ICC to be a remote threat’.Footnote 105 The phrase ‘Don’t be vague, go to The Hague’ emerged as part of the country’s political lexicon, ostensibly signalling a preference for the ICC’s involvement, even if it signalled that the Court was seen to be the more limited threat.Footnote 106
Repeated attempts by the Kenyan Parliament to withdraw from the Rome Statute and to repeal the ICA also reflect the deeply contested nature of the ICC’s intervention.Footnote 107 At the time of the Court’s summons, domestic legislation was, in fact, tabled seeking to repeal the ICA. Although the government took no action on the bill, only one parliamentarian (former justice minister Karua) opposed the motion.Footnote 108 Furthermore, in contrast to the ‘global village’ invoked by Attorney General Wako only three years before, at a special session of the Senate in December 2013 (and following a similar debate by the National Assembly in SeptemberFootnote 109), senators spoke of cooperation with the ICC as ‘singing the tune of the whites’; of ‘playing politics with the boundaries of this country and the flag and the national anthem of our nation’; and of an ‘unsupervised prosecutor who can … arrest people who he thinks do not suck up to international neo-colonial ideology’.Footnote 110
This discourse has further cast Kenyan civil society as shadowy hands conspiring against the state and its people – ‘evil society’ in the words of Kenyatta’s 2013 presidential campaign.Footnote 111 Furthermore, according to the Senate Majority Leader:
What has happened … is that a few people especially from the Non-Government Organisations (NGOs) world decided to convert the misery and the tragedy that befell our country into a money-minting business where a few citizens have converted themselves into running rings and organisations in the name of victims support. These are people who have been responsible and have been used by foreigners to cook up the stories and bring up the kind of friction that is now being witnessed before the [ICC]. As I said, we should be all ashamed as Kenyans.Footnote 112
The Senate ultimately passed a motion expressing its intention to bring forward a bill that would compel the government to withdraw from the ICC. Like the ICA’s passage, however, this motion may be largely symbolic: to date, no such bill has been tabled.
Implementation as purity, as politics and as ‘performance’
The histories recounted herein suggest three tentative fault lines around implementation of the Rome Statute and its relationship to complementarity.
Implementation as purity
Rather than a catalyst, the ICC is better understood as the axis around which much advocacy for implementation of the Rome Statute has turned. Domestic NGO coalitions were stimulated and supported by larger, international organisations who saw implementation not only as a way to facilitate cooperation with the ICC, but also as a broader step in criminal justice reform. Abolition of the death penalty and the introduction of victim participation regimes are perhaps the clearest illustration of such reform. The normative stake of many of these actors, however, as well as many legal academics, is to preserve the Rome Statute in its technically correct or ‘pure’ form, transplanting its complex substantive and unique procedural provisions into national legal frameworks. The proliferation of ‘model laws’ and legal tools – most of which copy the Statute in content and form – are a means towards this end.
Yet ‘distortions’ in implementation are an issue of legal pluralism: they are an inevitable product of importing new legal principles into an established legal system. In her work on the ‘translation’ of international law into local justice, Sally Engle Merry contends that the efficacy of human rights depends on their ‘need to be translated into local terms and situated within local contexts of power and meaning’; they need ‘to be remade in the vernacular’.Footnote 113 Merry helpfully defines translation as ‘the process of adjusting the rhetoric and structures of … programs or interventions to local circumstances’,Footnote 114 but she notes that the process can also yield replication: rather than a merger of global frames with local forms (hybridisation), they are appropriated wholesale. Similarly, Mark Drumbl notes that, ‘Pressures emanating from dominant international norms [can] narrow the diversity of national and local accountability modalities.’Footnote 115
Analogised to the implementation efforts detailed herein, there is little evidence of ‘vernacularisation’ in either Uganda or Kenya. In both countries, the Statute’s core substantive and procedural provisions were copied, based almost entirely on ‘model’ ICC legislation that had been prepared for export. Rather than an opportunity to tailor domestic legislation to reflect more localised concerns and desires – to encompass, for instance, suggestions that it incorporate the crime of pillage or corporate liability, or to accommodate other transitional justice measures – implementation appeared instead as an exercise in mimicry. This is not accidental: as noted above, much of the academic literature has deliberately presented complementarity as requiring uniformity with the Rome Statute, while NGO implementation materials and other capacity-building programs have been similarly designed. Thus, even though international law certainly permits amendments in the form of broader protection at the national level few (if any) of these materials encourage them.Footnote 116
Implementation as politics
While often presented as a seemingly technical exercise, implementation is fundamentally a political process. In both countries, the passage of implementing legislation was alternately delayed because it was not a sufficient political priority, or passed swiftly, with large majorities, because it became important enough to external constituencies and carried little political cost. In Kenya and Uganda, the politics that predominated was initially one of wanting to be seen as compliant states: implementation was evidence of putting complementarity ‘into practice’ and a means of signalling to external constituencies the governments’ purported commitment to accountability.
At the time the acts were enacted, these priorities briefly outweighed other domestic concerns. In Uganda, what passage of the ICC Act might mean for the continued practice of granting amnesties was glossed over, but quickly returned to the political fore. Similarly, Kenya’s charged domestic politics are largely absent from the 2008 parliamentary debate on the ICA’s passage, yet the unexpected swiftness of the ICC’s intervention there radically altered the political landscape; indeed, most ‘regard the leadership of the Jubilee Alliance as a political marriage forged to protect’ Kenyatta and Ruto.Footnote 117 This, in turn, has led to repeated efforts to nullify the domestic legislation, withdraw from the Court and derail its proceedings.
Yet the intensity of these debates, and their relative absence from earlier discourse, suggests a decoupling from the politics of the Rome Statute’s enactment and the text of the implementation legislation itself. A focus on the ‘ceremonial conformity’Footnote 118 of Uganda’s ICC Act and Kenya’s ICA with the Rome Statute – an exact mapping of the latter’s substantive and procedural provisions – can be understood as a desire to gain or maintain international legitimacy, but it also reflects the power and authority of particular non-state actors – influential NGOs, legal academics, the ICC itself – to mediate the relationship between the international and national spheres. It also underscores their influence in the social construction of a new norm of complementarity, one that is increasingly freed from its legal constraints as an admissibility principle in the service of broader governance goals.
These goals may be normatively desirable; however, they also risk supplanting democratic deliberation with ‘a treaty-centred international administrative bureaucracy’, contributing to a ‘whittling down of democratic input in important aspects of national lawmaking’.Footnote 119 The presentation of implementation as an international duty rather than a choice (or even a priority) amongst domestic political actors has arguably contributed to such ‘whittling down’.
Implementation as ‘performance’
Contrary to popular accounts, the ICC itself was not a catalyst for implementation of the Rome Statute in either Kenya or Uganda. The passage of the ICC Act did not come until eight years after the Court had formally intervened in Uganda, bringing with it an array of other transnational actors whose focus and interests were significantly broader than the ICC’s alone. Moreover, since the act’s passage, there is increasing evidence to suggest that it was the country’s role as host state for the ICC Review Conference, part of an orchestrated performance for the ‘international community’ which pushed forward legislation that had otherwise languished.
The desire to be seen as a compliant, cooperative state in the eyes of international actors likewise motivated Kenyan politics, at least in the early phase of the post-election violence. At that stage, in 2008, the imminence of ICC intervention still appeared relatively remote – indeed, it was its remoteness that led many MPs to reject the Special Tribunal bill – but passage of the ICA was seen as a politically strategic move. As a stand-alone recommendation of the Waki Commission it was an opportunity to signal a break with the past, even as the act’s own retrospective applicability to those events appeared doubtful. The ICA may have been, in the words of the director of a leading Kenyan NGO, the country’s ‘never again’ moment but, unlike the STK, it came at a sufficiently low political cost.Footnote 120
These histories suggest that, rather than a deliberative, democratic process, implementation in Uganda and Kenya is better understood as a form of political theatre. In both countries, passage of domestic ICC legislation was hailed for its swift passage with large majorities, demonstrating the entrenchment of global norms domestically and vindicating the ICC’s catalytic potential. In fact, however, implementation of the Statute was accelerated in order to ‘perform’ complementarity for predominantly international audiences, and to signal, in the Kenyan context, a return to the ‘global village’. Much like the international criminal trial itself, then, implementation of the Rome Statute served a symbolic function, even as the post-implementation domestic politics of both countries remain deeply contested.Footnote 121
Conclusion
Implementation narratives typically present the process as part of a march towards global consensus – as something above the state, rather than a part of it. ‘Model’ laws and toolkits facilitate this process; however, as this chapter has suggested, such questions of technique overwhelmingly privilege uniformity with the Rome Statute, often stifling deeper political debates within the state itself. Moreover, the outsized role of external actors and constituencies in these processes – most of whom regard deviation from the Statute with suspicion – raises questions about who the agents of implementation are, as well as the content and form of the domestic legislation that is enacted. Efforts to progressively narrow discussions about alternative forms of justice from the Ugandan ICC Act, or the mistaken belief that a domestic Rome Statute could not incorporate economic crimes in Kenya, suggest a view of implementation driven less by domestic political interests than in replicating the Statute as a ‘global script’.
Thinking of implementation as beyond fidelity to the Rome Statute could free a space in which to think more critically about its productive potential. As this chapter has illustrated, implementation is a politically fraught and dynamic process; it continues long after legislation is formally passed. In Uganda, domestic debates over the fate of Thomas Kwoyelo and the future of the country’s transitional justice process continue to evolve; in Kenya, threats by parliamentarians to repeal the ICA or withdraw from the Court reflect deeper contestation over the ICC’s selective geographies and Western origins. These uneven trajectories suggest that implementation is a site for contestation but, equally, for experimentation and innovation as well. In short, implementation can be a site for states to also develop this dynamic body of law in a manner that better reflects their national interests and local contexts. All roads need not lead to Rome.
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