Vice-President Kalonzo Musyoka represented Kenya at the African Union Committee of Ten meeting hosted by Libya’s Muammar Gadaffi (left). The VP has been spearheading Kenya’s shuttle diplomacy to win support to defer the ICC cases. Photo/VPPS
By Samwel Kumba skumba@ke.nationmedia.comPosted Friday, March 4 2011 at 22:00
In Summary
- Although AU backing is in the bag, two UN Security Council members have given proposal a thumbs-down
Kenya’s renewed shuttle diplomacy to try and defer post-election violence cases at the International Criminal Court (ICC) may come to naught after two permanent members of the UN Security Council indicated they would veto the request.
This could force the country to walk into the lion’s den and negotiate directly with the ICC.
After winning the support of the African Union (AU), Kenya seems to have launched the next phase of its shuttle diplomacy by seeking to lobby countries in Asia, Europe and the United States.
The aim is to convince the Security Council of the necessity of deferring the cases against six Kenyans named by ICC prosecutor Luis Moreno-Ocampo as suspected perpetrators of the 2007-8 post-election violence.
However, the UK and the US have signalled their intention to veto the move. The other permanent members with veto powers are France, Russia and China.
Last month, the government summoned its ambassadors to Nairobi to ostensibly relay the message that the deferral is being sought in good faith. The envoys met President Kibaki at Harambee House.
Poses a threat
However, an informal network of civil society groups and international organisations have urged the Security Council to reject Kenya’s proposal.
In a statement copied to South Africa, Nigeria and Gabon — Africa’s representatives in the Security Council — the groups say there is no indication that the ICC’s work in Kenya poses a threat to international peace and security.
“Rather than promote instability, the ICC’s investigations could counter impunity in Kenya, which many believe contributed significantly to the 2007-2008 violence,” they say.
This follows a similar request by the International Centre for Policy and Conflict (ICPC) to the security council urging it to ignore Kenya’s overtures.
ICPC executive director Ndung’u Wainaina said long-lasting peace could not be achieved without justice.
“There is need to ensure justice will lead to peace rather than delay it. The push to defer the ICC cases is a veiled effort to deny victims of the 2007-2008 post-election violence justice,” Mr Wainaina says in a letter to the security council.
The Rome Statute allows Kenya to request the court to grant it an opportunity to handle the cases locally on condition that the government is genuinely willing and able to prosecute suspects.
The ICC’s public information and documentation section indicates that a government can seek deferral only if and when the judges of the pre-trial chamber decide to issue summons or warrants of arrest.
“That challenge can take place at the earliest opportunity before the pre-trial chamber,” says associate legal outreach officer Jelena Vukasinovic-Larmour.
She said the ICC has not received any communication from the security council regarding deferral under Article 16.
“If Kenya succeeds in challenging the admissibility, under Article 19, the prosecutor may submit a request for review of the chamber’s decision,” she told Saturday Nation.
This, however, is only possible when the prosecutor is fully satisfied that new facts have arisen that negate the basis on which the case had previously been found inadmissible under Article 17.
When a case has been determined inadmissible, the pre-trial chamber may review its previous ruling if new facts demonstrate that a country is not genuinely prosecuting those persons.
In the meantime, the six people named by Mr Moreno-Ocampo, Mr William Ruto, Mr Uhuru Kenyatta, Mr Henry Kosgey, Mr Francis Muthaura, Maj-Gen (rtd) Hussein Ali and Mr Joshua arap Sang, are deemed innocent until summons or arrest warrants are issued.
The prosecutor had requested for summons but the judges may decide to issue warrants of arrest instead.
The rules are that the pre-trial chamber issues a warrant of arrest or summons if it determines that the evidence presented by the prosecutor establishes “reasonable grounds to believe” that the person has committed the alleged crimes.
To issue a summons, the chamber must be satisfied that the suspect will appear voluntarily before the court. A warrant is issued when there are reasonable grounds to believe that a suspect will not appear voluntarily.
An arrest also ensures the suspect does not obstruct or endanger the investigation or proceedings.
If the judges decide to issue summons or warrants of arrest, the six named individuals will go to court for an “initial appearance hearing”.
If the judges decide to issue summons or warrants of arrest, the six named individuals will go to court for an “initial appearance hearing”.
International law expert Kithure Kindiki says the AU’s support for deferral shows the continent’s unanimity and strengthens Kenya’s hand.
“There is a belief the ICC unfairly targets African countries,” he says.
Another lawyer familiar with the court’s processes, Mr Ken Ogeto, says Kenya’s shuttle diplomacy had only succeeded in galvanising African opinion against Mr Moreno-Ocampo.
“The prosecutor seems to have politicised his mandate and given undue attention to situations in Africa even where the threshold for ICC intervention is not evident,” he says.
Mr Ogeto points out that pre-trial chamber II has castigated the prosecutor for disclosing the suspects’ names before summons or warrants are issued.
He, however, doubted that a deferral through the Security Council is possible.
“The deferral is one of many efforts aimed at demonstrating to the international community that the ICC process in Kenya lacks a proper legal basis and is motivated by a partisan political consideration,” he says.
Prof Kindiki says voting at the Security Council is such that a single veto deals a blow to the entire exercise.
He says there are sceptical constituencies like civil society that view deferral as promoting impunity.
This could explain why International Commission of Jurists-Kenya executive director George Kegoro led a team to The Hague to lobby against the deferral bid.
The team then proceeded to the US for a week-long meeting with White House officials and staff from the war crimes division and the Kenya desk of the State Department.
“In New York, we delivered the same message,” says Mr Kegoro.
He says President Kibaki should not expect the bid for deferral to be taken seriously, especially after announcing that suspects would remain in office and later embracing Mr Kenyatta and Mr Ruto at a rally in Eldoret.
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