The Government, however, has one last option to directly petition the ICC to cede jurisdiction of the cases. But even here success is remote because credible and on-going judicial proceedings against the ‘Ocampo Six’ for the same international crimes are a precondition for referral.
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| President Mwai Kibaki |
This was happening as two of those named, Deputy Prime Minister, Uhuru Kenyatta, and Eldoret North MP, William Ruto, joined Saboti MP, Eugene Wamalwa, in a rally seen as part of their plot to stop Prime Minister Raila Odinga from the presidency.
The development is also likely to step up the anti-ICC rhetoric given on Friday PNU vowed to continue the push for Kenya to withdraw from the Rome Statute, even if The Hague trials begin.
Reports of the crushing blow to the costly shuttle diplomacy came a day after President Kibaki had told visiting Chinese Vice-Premier Kenya was committed to seeking the deferral of the cases "to entrench peace and security".
Though China, the current Security Council President, supported Kenya’s cause during the "interactive dialogue" on Friday night in New York, majority of the 15-member Council were not persuaded Kenya’s plea met conditions for a deferral under Article 16 on threats to international peace and security.
Veto wielding US, UK, and France and non-permanent members, Portugal and Germany opposed Kenya’s petition. Colombia, Brazil and Lebanon reportedly requested for additional information to help inform their decision.
Only India and three African countries — South Africa, Gabon and Nigeria — backed Kenya’s plea for one-year deferral of ICC cases.
However, other conflicting reports indicated South Africa and Nigeria did not support Kenya’s bid, but it is highly unlikely the two went against an African Union resolution supporting Kenya.
Although this was an informal session of the UNSC, convened for Kenya to make its submissions, that members were not convinced might as well have slammed the door on the possibility of a vote at the formal sitting of the UNSC of any deferral on Kenya’s ICC cases.
Ambassador Macharia Kamau, Kenya’s Permanent Representative to the UN, who led the mission, captured the uncertainty saying: "The matter is now left to the Council to decide how it may or may not consider the issue further."
Uhuru, Head of the Civil Service and Secretary to the Cabinet, Francis Muthaura, Ruto, Postmaster General Maj-Gen (rtd) Hussein Ali, Tinderet MP Henry Kosgey and Kass FM presenter, Joshua Sang, have been summoned to The Hague over the 2007-08 post election violence.
Speaking to reporters after attending a key meeting with other envoys here on Friday, French ambassador to the United Nations, Gerard Araud, cited Article 16 of the Rome Statute saying that conditions of its implementation have not been met.
"We have been very clear with the Kenyan delegation, the deferral request is not tenable as it is not contemplated in Article 16 of the Rome Statute," said the ambassador, who represents one of the nations with veto powers.
The envoy was referring to an Article of association, which allows for suspension of cases if the ICC proceedings are deemed to constitute a threat to international peace and security. In such an event, the Rome Statute allows the Security Council to suspend ICC proceedings for up to 12 months at a time.
The envoy spoke shortly after an informal meeting between Kenyan representatives and key members of the council. The development deals a blow to the efforts of the Kenya Government, which has been pushing for deferral. The United States and Britain had previously indicated they would reject the request.
Welcoming the development, Lands Minister James Orengo claimed the PNU wing of Government is forcing Attorney General Amos Wako to file the application challenging the admissibility of the ICC cases, and ICC jurisdiction.
"The problem with our coalition partners is that they are not listening to legal opinion. Now they are bulldozing the AG to file the application when grounds for such a petition do not obtain. The Government does not know that through its actions it is weakening and destroying the defense of the Ocampo Six," Orengo told The Standard On Sunday on phone from abroad.
He said the strategy would also boomerang because the Rome Statute required proof of credible local judicial proceedings against the suspects.
Orengo, a key ally of the Prime Minister, explained since the UNSC did not refer Kenya’s case to the ICC – unlike Darfur in Sudan or Libya – it was bound to be reluctant to vote for deferral.
"There are dark forces, the barons of impunity, who are trying to blackmail the President. I hope the President will be courageous and decisive to put a stop to it," Orengo said.
He added: "I have been to meetings where some people create the impression that if the President allows the ICC to take over the cases, he could also be in danger of becoming a subject of investigations."
PNU has persistently claimed the ICC action against the Ocampo Six is a ploy by its coalition partner ODM to manipulate the General Election. But the Rome Statute that establishes ICC does not recognise such intrigues.
"We shall not permit Moreno-Ocampo to manipulate the 2012 General Election, deny us our fundamental constitutional right and appoint a president by default," PNU secretary general, Kiraitu Murungi, a lawyer, said on Friday.
PNU has vowed to continue the push for Kenya to withdraw from the Rome Statute even if The Hague trials begin.
"Only an irresponsible party would not see this ominous signal that the ICC process may very well undermine justice and collective peace for the nation," said the party in a statement read Murungi read.
Information relayed to Kenyan authorities by Kamau indicated the interactive dialogue lasted two hours and 45 minutes during which Kenya made its case.
The Kenya mission argued that the 12-month deferral would allow presidential campaigns and the General Election, due next year, to take place ‘unencumbered’ by the ICC process and stop politicisation of the ICC cases, which had slowed reforms.
"The dialogue took place after strenuous diplomatic efforts and exposed the deep political fissures in the Coalition Government and the international community," Kamau said.
Representatives of dissenting nations argued that Kenya, instead, should directly petition the ICC under Article 19 of the Rome Statute, which does not require the involvement of the UNSC.
A day after ICC summoned the ‘Ocampo Six’ the Government announced it would challenge the admissibility of the ICC cases and ICC jurisdiction as provided under Article 19.
The Kenyan mission is confident it is on track to meet the ‘complementarity’ requirements of Article 19 so the ICC cedes jurisdiction of the cases.
Aware that it is racing against time, the Government is pressing on with measures it hopes would bolster its claims that it is putting in place a judicial process to prosecute the post-election violence perpetrators.
As part of the exercise, the Government has advertised the post of Director of Public Prosecutions, with the Justice Minister indicating the new holder could be appointed by April 15.
The applications for the posts of Chief Justice and Deputy Chief Justice close next Friday. And the Government has dispatched police investigators to the 2007-2008 post-election violence hotspots to collect evidence on the chaos and lay the groundwork for local trials.
The investigators will be probing crimes that were committed 40 months ago. The probe involves police officers, who were cited in the Waki Commission as responsible for half of the 1,200 post-election killings.
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