Kibaki, Muthaura and security chiefs meet envoys over ICC deferral bid

By Ben Agina
President Kibaki held a closed door meeting with 23 Kenyan envoys to marshal diplomatic strategies aimed at convincing the United Nations to defer cases at the International Criminal Court. The meeting came as outgoing US Ambassador to Kenya Michael Ranneberger said his country would veto Kenya’s request for deferral if it came up for a vote at the UN Security Council. British High Commissioner Rob Macaire also said the UK would veto Kenya’s request.
No reporters or photojournalists were allowed into the meeting and the only acknowledgement from the Government of the consultations was a terse, two-line paragraph from the Presidential Press Service.
As Kibaki asked the envoys to embark on a diplomatic offensive to woo UN Security Council member countries to vote for Kenya’s request to defer the cases, Head of Public Service Francis Muthaura, who is one of the suspects who may face trial at the ICC sat at the dais with the Head of State.
Muthaura is one of the individuals ICC chief prosecutor Luis Moreno-Ocampo accuses of committing crimes against humanity during the chaos that erupted in the country following the disputed 2007 presidential elections.
Sources who attended the meeting said there was a visible sigh of relief on Muthaura’s face as the envoys were taken through the steps they are to follow in their efforts to strengthen the case for deferral.
Following yesterday’s meeting, the envoys will go back to their stations with what is called an aide-mÈmoire, a proposed negotiating text to guide deliberations with their hosts.
During the meeting the envoys were told the Government would use a two-pronged approach to achieve the objective of deferring the case facing Muthaura and the other five individuals. The first strategy is to convince the countries that sit on the UN Security Council that the ICC case may destabilise Kenya, and such a scenario would have a negative impact on the whole region.
To buttress this, the Government intends to hinge its argument on provisions of Article 16 of the Rome Statute that established the ICC.
A deferral under this Article 16 can be achieved if the Security Council (under Chapter VII of the UN Charter) determines there is a threat to international peace and security if the case against the "Ocampo Six" is allowed to proceed. The other option is to go directly to the ICC and convince the court Kenya is reforming the judiciary to make it capable of trying post-election violence perpetrators.
Mobilize support
Briefing the envoys yesterday before President Kibaki spoke, Internal Security Minister Prof George Saitoti who chairs the Cabinet sub-committee on ICC said the country had made significant progress in trying to have local judicial mechanism.
Saitoti is said to have told the envoys that as they go back to their respective capitals, there was need to well informed on the position the Government has taken

President Kibaki poses for a picture after addressing 23 Kenyan envoys and top Foreign and Security officials Tuesday at Harambee House [PHOTO PPS]

Kibaki, who termed the issue as "very serious", explained to the envoys that there was need for them to be well informed.
The President, who did not have anything written speech, spoke off-the-cuff and urged the envoys to take the tasks ahead of them seriously.
The ambassadors also made suggestions on how to mobilise support through the Security Council and ICC. "Some of them expressed confidence it can be done.
They came out very optimistic," one source said. Envoys who made submissions were Elkana Odembo (US), Kamau Macharia (Permanent Representative to the UN), Salma Ahmed (France), Julius Sunkuli (China), and Kembi Gitura (Belgium and European Union).
In attendance also were the President’s Private Secretary Prof Nick Wanjohi, Internal Security PS Francis Kimemia, National Security Intelligence Service Director-General Michael Gichangi, acting Foreign Affairs PS Patrick Wamoto and Solicitor-General Wanjuki Muchemi.
The composition of the government functionaries attending the meeting reflected the rift in government over the position on the ICC.
Prime Minister Raila Odinga who has said attempts to defer the Kenyans’ cases are doomed to fail did not attend, nor did officials from his side of the coalition. On Monday, Raila said: " The rule of law should be respected. Those hopping from one country to another seeking support for deferral are perpetrators of impunity."
An envoy at yesterday’s meeting said the rift in the coalition might become a barrier to their success in wooing their host nation’s leaders.
Aggression
"What signal will we be sending to the foreign capitals if one coalition partner is not part of this arrangement. How will we convince the foreign capital that this is a Government position," said an envoy that attended the meeting.
On December 15 last year, Moreno-Ocampo asked the Pre-Trial Chamber to issue summons for Deputy Prime Minister Uhuru Kenyatta, suspended ministers William Ruto and Henry Kosgey, Muthaura, and Kass FM radio presenter Joshua Sang over their alleged role in the chaos.
Kenya’s bid to convince the ICC to defer the cases linked to the 2007-2008 post-election violence was boosted after the African Union (AU) endorsed the request, and asked the UN Security Council to support it.
Heads of State who attended the AU Summit in Addis Ababa, Ethiopia, "expressed concern the International Criminal Court process in Kenya threatens the on-going national efforts in peace building, national reconciliation and political transition".
The justification for the deferral was apparently informed by the fact a resolution is considered under Chapter VII of the Charter of the United Nations on "action with respect to threats to the peace, breaches of the peace, and acts of aggression".
The AU noted the negative effects of the 2008 post-election violence "went beyond Kenyan borders thereby threatening regional peace, security and the livelihoods of the people of the region".
Prior to yesterday’s meeting the envoys were taken through the ICC process by officials from the Ministry of Foreign Affairs and resource persons led by Kibaki’s advisor on constitutional matters Prof Kivutha Kibwana, Justice PS Amina Mohammed, Muchemi and lawyer Kindiki Kithure.