Kenya wins round one as AU buys motion

By Lucianne Limo

The African Union has successfully begun the process of seeking to defer the cases filed at the International Criminal Court (ICC) against six Kenyans.

The AU Council of ministers unanimously adopted Kenya’s Motion seeking support for a deferral of the cases filed by ICC Prosecutor Luis Moreno-Ocampo.

President Kibaki’s task of seeking the approval of fellow heads of government will therefore be a mere formality when he arrives in Addis-Ababa for the 16th AU summit this afternoon.

The ministers voted on Friday in Addis Ababa where they are meeting ahead of a summit of heads of state scheduled to start on Sunday.

The proposal was moved by Tanzania and got full backing from the ministers present, among them Kenya’s acting Foreign Affairs Minister George Saitoti.

President Kibaki jets leaves for Ethiopia this afternoon for the meeting where he will ask for support from other heads of state.

Reacting to the council of ministers decision Njonjo Mue of International Centre for Transitional Justice said it is unfortunate Kenya has opted to go that way.

"It’s now up to the heads of state to debate the motion and either adopt or reject it during their summit on Sunday," said Njonjo

Njonjo said the ICC has always been open for Kenya to challenge the admissibility of their case through legal means and not through the political process.

The ministers ignored Addis Ababa where they are meeting ahead of a summit of heads of state scheduled to start on Sunday.

The proposal was moved by Tanzania and got full backing from the ministers present, among them Kenya’s acting Foreign Affairs Minister George Saitoti.

President Kibaki jets leaves for Ethiopia this afternoon for the meeting where he will ask for support from other heads of state.

Reacting to the council of ministers decision Njonjo Mue of International Centre for Transitional Justice said it is unfortunate Kenya has opted to go that way.

"It’s now up to the heads of state to debate the motion and either adopt or reject it during their summit on Sunday," said Njonjo

Njonjo said the ICC has always been open for Kenya to challenge the admissibility of their case through legal means and not through the political process.

The ministers ignored attempts by Christian Wenaweser, president of the Assembly of State Parties to the Rome Statute, to redirect the issues to the ICC.

He spent two days in Ethiopia convincing the AU Commission to deal directly with the ICC instead of seeking the deferral though the UN Security Council.

He then came to Nairobi, where he said that Kenya was wasting time by trying to lobby the African Union instead of dealing with the ICC.

But despite his confidence, it has emerged that ICC officials are afraid that the Kenyan approach could lead to a mass pull out from the Rome Statute by African states.

Currently, apart from the Yugoslavia case, all other cases being handled by the court are from the African continent.

Countries like the USA did not ratify the Statute and African countries complain that they should be forced to retain their membership.

Vice-President Kalonzo Musyoka has visited many African countries lobbying for the support of leaders who will be attending the Addis-Ababa meeting.

It should not be lost that he also visited South Africa, a country elected by the 192 member UN General Assembly to one of the two-year seats on the UN Security Council in October last year.

It is therefore expected that South Africa will be pushing for the Kenya case as an AU proposal when the motion comes up at the Security Council.

Political problem

Article 16 of the Rome Statute recognises Chapter 7 of the Charter for the United Nations and designates the Security Council as the only organ that can seek deferral during either investigation or prosecution.

Kenya is arguing that what transpired in 2008 was a political problem, which can be sorted out locally without the involvement of the ICC or any other foreign jurisdiction.

On Friday, the Government assured Wenaweser that Kenya was still a member of ICC, but was willing to establish local mechanisms to try perpetrators of violence.

President Kibaki assured him of Kenya’s commitment to establishing national judicial proceedings for post-poll violence suspects.

"Kenya has taken and will continue to implement measures to establish national judicial mechanisms to deal with and try post-election violence suspects within the framework of our Constitution and the Rome Statute under the principle of complementarity," said Kibaki.

The Government, the President noted, has prepared Bills, including the Judicial Service Bill 2011, the Vetting of Judges and Magistrates Bill 2011, and for Bills to be tabled in Parliament to reform the Judiciary, the Police and the Office of the Director of Public Prosecutions.

The President briefed Wenaweser that actions that have been taken by the Government in respect of post-election violence are in compliance with the Rome Statute.

The meeting also acknowledged that pursuit of justice should be seen in the context of peace, national cohesion, reconciliation and respect for national dignity and sovereignty, as statement from State House read.

Wenaweser expressed his appreciation of Kenya’s continued co-operation with the ICC, including the enactment of enabling and implementing legislation, which is the International Crime Act.

Justice Minister Mutula Kilonzo, Lands Minister James Orengo, Attorney General Amos Wako and Foreign Affairs Assistant Minister Richard Onyonka attended the meeting.

Wenaweser later held a press conference at the Hilton Hotel where he acknowledged he had received a positive response from the President.

Wenaweser said he had received commitment by the Government that it would set up local mechanism to investigate and prosecute post-election violence.

Diplomatic missions

He, however, challenged the Government to convince the ICC it is capable of establishing a local mechanism to prosecute international crimes locally instead of doing shuttle diplomacy.

"I encouraged the Government that if there is a genuine and effective proceedings in Kenya, then they should be convince the court in The Hague," he said.

He added: "Kenya should make a case in court and if the judges are convinced that the Government is willing to do investigations, then they will act accordingly."

"This is the main philosophy of the Rome statues that states investigate their own crimes as long as they establish a credible and effective judicial proceedings, which is a spirit of complementarity," he said.

He, however, said his visit would only be seen as successful once he gets written communication from the Government at The Hague on its commitment.

Wenawesser lamented that the diplomatic missions carried out by Government officials across Africa would create political pitfalls.