Kenya Again Tests Africa's Commitment to the ICC

This briefing by Max du Plessis analyzes the Kenyan government's efforts to obstruct International Criminal Court (ICC) proceedings regarding the 2007-8 post-election violence. The author argues that Kenya's strategy—seeking a UN Security Council deferral under Article 16 of the Rome Statute—is legally flawed and politically risky, while suggesting a complementary approach where national courts try lower-level perpetrators and the ICC focuses on those with the greatest responsibility.

• The Kenyan government has attempted to obstruct ICC proceedings following the December 15, 2010, request by prosecutor Luis Moreno Ocampo for summons for six individuals regarding crimes against humanity during the 2007-8 post-election violence, which resulted in over 1,000 deaths. Initial reactions included a December 22, 2010, parliamentary resolution calling for withdrawal from the Rome Statute, followed by a shift toward seeking an African Union (AU) resolution to request a UN Security Council deferral under article 16 of the Rome Statute.
• The author contends that Kenya's request for a deferral under Article 16 is legally unsound because it conflates the Security Council's power to halt proceedings to maintain international peace and security with the principle of complementarity. The author asserts that the ICC's involvement in Kenya does not constitute a threat to international peace and security, which is the necessary condition for a Chapter VII UN Charter deferral.
• Kenya has sought diplomatic support for its deferral strategy from the AU Commission, IGAD, and countries including South Africa, Nigeria, Uganda, and Ethiopia. However, the author suggests this is a political gesture likely to fail at the Security Council and may further alienate Africa from the ICC, noting a pattern of African states seeking deferrals when political elites are implicated, such as in the case of Sudanese president Omar al-Bashir.
• The author argues that while the principle of complementarity encourages national proceedings, Kenya's sudden interest in domestic trials is suspicious given its previous failure to act on the Waki Commission's recommendation for a special tribunal. The author recommends a dual approach: Kenya should establish credible national mechanisms to try those who carried out the violence, while the ICC handles those bearing the greatest responsibility.

APA

du Plessis, M. (n.d.). Kenya Again Tests Africa's Commitment to the ICC. Institute for Security Studies. https://issafrica.org/iss-today/kenya-again-tests-africas-commitment-to-the-icc

Chicago

du Plessis, Max. Kenya Again Tests Africa's Commitment to the ICC. Institute for Security Studies, n.d. https://issafrica.org/iss-today/kenya-again-tests-africas-commitment-to-the-icc.

Wikipedia

{{cite report |last1=du Plessis |first1=Max |title=Kenya Again Tests Africa's Commitment to the ICC |publisher=Institute for Security Studies |url=https://issafrica.org/iss-today/kenya-again-tests-africas-commitment-to-the-icc |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{duplessisndkenya, author = {du Plessis, Max}, title = {{Kenya Again Tests Africa's Commitment to the ICC}}, institution = {Institute for Security Studies}, url = {https://issafrica.org/iss-today/kenya-again-tests-africas-commitment-to-the-icc}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }