International courts hold a special place in Kenya’s history. Very few countries can say they had as intimate a relationship with international law, as Kenya has.
The decision on the maritime dispute between Kenya and Somalia by the International Court of Justice has been a hotly debated topic. President Kenyatta went as far as calling the decision “erroneous”. It is very rare, I agree with the President, however in this matter, he acted near admirably.
International courts have been the courts of last resort for issues that cannot be resolved by conventional means. For instance, although states may have judicial systems that can comfortably adjudicate on issues such as theft or assault, they often lack the framework to deal with crimes of high stature such as international border disputes, genocides, or crimes against humanity either due to their extra-national nature or sheer inability to credibly prosecute such cases.
However, international law, specifically, international judicial institutions are fundamentally flawed and Uhuru touched on one of the major shortcomings of these institutions, namely, what role (if any) consent of states plays in these judicial processes.
International legal institutions as they stand continue their role as a tool of western states to exert control over and dominate states in the global south. The colonial attitudes that were present at the birth of these institutions are still apparent today as western states continue their historic mission to “civilise the uncivilized”.
This deeply flawed and racist notion, that was the ideological basis of colonisation, murder, rape, and dehumanisation of the African people, continues today in the denial of African states the right to consent into judicial processes or rely on their own institutions such as the Court of Justice of the African Union to adjudicate on their own issues because of some unnamed deficiency.
It is not enough to say colonialism is simply in the past and international law of today is free of these colonial and imperialist attitudes. Neocolonialism is present in today’s international (legal) institutions in the sense that they are a continuation of the economic and political control exercised by colonialists of the past.
Acknowledging the fact that international law was shaped by these attitudes and is still, in some sense, prevalent today is a crucial step towards the creation of a truly “just” international justice system.
In the Rome Statute that birthed the International Criminal Court, there is no mention of any kind of capacity building project to help improve national judiciaries to allow them to reach a level where they will one day be able to adjudicate on all issues and deliver justice promptly to all people’s. Rather, it encourages reliance on these Western institutions to deliver a form of justice that will further Western interests.
For example, idealistically speaking, Kenya should be able to serve justice to communities affected by the perpetrators of the post-electoral violence. However, the way international (criminal) law is structured, encourages reliance on external actors to pursue justice, weakening the state’s sovereignty.
Western states have no interest in developing the judicial systems of third world countries to a point where they are independent, similar to how they had no interest in the end of colonialism or the independence of Africans. It is in this regard that Uhuru’s response to the court was beyond justified, not claiming that the ruling itself was wrong but rather protesting the right to make the ruling in the first place.
“It is an unfortunate development over the last decade, a trend that has emerged of some supposedly international organisations being deployed as political tools against certain countries. Sadly this has infected the ICJ, leading it to impose jurisdiction on a dispute that it has neither the jurisdiction nor competence,”- he said last year.
Some important questions to ask yourselves are, who or what are these international courts? Do they represent the interests of the international community or only the powerful? Who are these laws made for? If you took a pessimistic view, you would probably be correct. The top funders of international judicial institutions come from the West. The judges are acutely aware of where their funding or in other words, the basis for their very existence, comes from.
All decisions are made with these interests in mind, not purely the interests of justice which is what we would expect from them. Interests of states such as the United States, China, Japan and Russia, will never be credibly threatened by the international courts.
The United States, for example, passed a federal law over two decades ago that protects any US military or government personnel from prosecution by the International Criminal Court (ICC) and even goes as far as authorising the president to invade the Hague in order to free any detained service members or government officials.
Clearly, international law is not applied equally nor in pursuit of actual justice but rather, justice as the dominant interests see fit.
The idea that an international court with an African leading prosecution or on the bench would be able or even responsible for correcting the imperial and colonial attitudes embedded in the court is highly objectionable. Malcolm X said, “The white man will try to satisfy us with symbolic victories rather than (…) real justice”. As that idea would apply to international law, it appears he was right. Appointing a Gambian woman (Fatou Bensouda) as head prosecutor (ICC), or a Somali man (Abdulqawi Ahmed Yusuf) as President of the ICJ, will not alone correct the failures of international law.
The idea that the presence of someone of x identity alone would solve the issues present in international legal institutions is highly reductionist and ignorant of the deep-lying issues.