THE PETITION

Chungwa Moja, Maisha Bora

11 March 2011
Your Excellency,

RE: PETITION TO THE MEMBERS OF UN SECURITY COUNCIL
REGARDING THE KENYAN CASES AT THE ICC
It is my pleasure and privilege to refer to the ongoing International Criminal
Court proceedings relating to Kenya and the deferral request made by a
section of the Government of Kenya to the United Nations Security Council.
Background:
The Permanent Mission of the Republic of Kenya presented to the United
Nations and to all the Permanent and Observer Missions to the United
Nations an Aide Memoire titled “Kenya’s Reform Agenda and Engagement with
International Criminal Court (ICC)”.
Kenya’s Vice-President, H.E. Kalonzo Musyoka has led a delegation to the UN
Secretary General to discuss the Aide Memoire, alongside the Communiqué of
the 17th Extra-Ordinary Session of the IGAD Assembly of Heads of State and
Government on Sudan, Somalia and Kenya, and the African Union Decision on
the Implementation of the Decisions on the International Criminal Court on the
deferral/referral of the Kenyan Cases at the ICC.
It is important for the UN Members, the Security Council and Secretary-
General to have a complete picture and understanding of the situation in
Kenya before making any determination on the Aide Memoire from President
Kibaki.
This petition presents a set of incontrovertible facts which will assist The
Security Council and other interested parties to understand why the Kenyan
Cases at the ICC should neither be deferred nor referred. These facts justify
why the ongoing ICC process is the best and only means of securing justice to
the innocent victims of Kenya’s post election violence of 2007/8. It is
imperative to underline the fact that the institutions, groups and individuals
that were allegedly involved in the planning and execution of the crimes
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against humanity during the 2007/8 post-election violence in Kenya continue
to operate unfettered and occupy important positions of power within and
outside government.
Sixteen Reasons Why the Kenyan Cases at the ICC must neither be
Deferred nor Referred to Kenya:
• The prosecution of the Kenyan Cases at the ICC does not pose any
threat to international peace and security. To the contrary, failure to
bring to justice the perpetrators of post-election violence poses grave
danger to Kenya’s internal peace and security.
• The ICC process was unanimously approved by the two parties under
the Annan-brokered National Accord, and the instruments that paved
the way for the process were signed by both the President and the
Prime Minister for and on behalf of their respective political parties,
which form a coalition.
• The great majority of Kenyans (more than eighty per cent) support the
ICC process as the most credible method to fighting the culture of
impunity in Kenya. Surveys by leading institutions in the country have
repeatedly confirmed this position.
• Local (Kenyan) trials will be exposed to:
o political manipulation by leaders pleading the ethnic card;
o threats to witnesses, their families and friends. Indeed, many
witnesses have been hunted down and killed by State security
agents; and
o undue delays engineered by frivolous and vexatious applications.
• Local trials are not possible at the moment as there is no national
judicial mechanism in place to handle the cases. There have been no
investigations and prosecutions since the crimes were committed more
than three years ago. Moreover, the criminal justice system has not
been reformed to enable it to handle the cases. Although Kenya has
enacted the International Crimes Act, it is in doubt as to whether
Kenyan courts have jurisdiction over the international crimes
committed before January 2009 when the Act became operational.
• The judicial reforms contemplated under the new Constitution have not
been implemented. The judges and magistrates have not been vetted.
There is no independent prosecutorial authority.
• The involvement of the ICC was necessitated by Kenya’s rejection to
establish a national judicial mechanism to deal with the crimes
committed. In fact, the Government of Kenya repeatedly made verbal
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and written commitments to cooperate with the ICC and indicated that
if it was unable to prosecute the perpetrators of the 2007/08 post
election violence by September 2009, the ICC should do so. Those
written and public commitments were made by the Government to the
ICC Prosecutor both at The Hague and during his official visits to
Nairobi.
• Local trials will be used to shield the suspects from justice. This was
recently demonstrated by the nominations of Mr. Githu Muigai and Mr.
Kioko Kilukumi to the positions of Attorney-General and Director of
Public Prosecutions, respectively, while they are on record as lawyers
for two of the ICC suspects. In addition, an ICC suspect chaired the
Panel that identified and nominated Justice Visram to the position of
new Chief Justice. Although President Kibaki was forced to withdraw
his nominations through public outcry, a court order and stinging
resolutions of the National Assembly Speaker, the Judicial Service
Commission, the Commission on the Implementation of the
Constitution, the Law Society of Kenya, the Federation of Women
Lawyers and nearly all Kenyan civil society groups; it demonstrated the
extent to which President Kibaki’s Party of National Unity and the six
individuals summoned by the ICC would go to defeat the cause of
justice.
• The request for a deferral of the Kenyan cases pending before the ICC
has been made by one side of the Kenyan coalition government, namely
the Party of National Unity headed by President Mwai Kibaki. The
Orange Democratic Movement headed by the Prime Minister Raila
Odinga, does not support that request.
• Because of the significant positions held in and influence the suspects
wield within Government, they are the ones spearheading the deferral
request as a means of defeating the cause of justice. Ultimately, the six
suspects the ICC has summoned intend to use the deferral, if granted,
as the basis of perpetuating the culture of impunity in Kenya.
• The deferral request should therefore be seen as evidence that the Party
of National Unity and President Mwai Kibaki are both unwilling and
unable to prosecute the six suspects for the crimes alleged by the ICC.
• Since 1992, each general election has been characterized by state
sponsored violence and ethnic cleansings leading to mass deaths,
evictions, rapes and arson. While there have been official judicial
inquiries on these crimes, no prosecutions have ever been conducted,
and no culprits have been punished.
• Extra-judicial killings have increased significantly since 2003. The
United Nations Special Rapporteur on Human Rights, Prof. Philip
Alston has investigated and made far-reaching findings and
recommendations. However, the Government has not taken any action.
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• Both the Cabinet and Kenyan Parliament have on more than two
occasions rejected Bills for the establishment of a local tribunal for the
cases and instead declared that the trials should be held at The Hague.
• The ICC process is the only opportunity that Kenyans have to break the
culture of impunity and the circle of elections-related violence.
• In view of the foregoing the request for deferral does not qualify or merit
consideration by the UN Security Council within the provisions of
Article 16 of the Rome Statute, or through any other provisions. This is
particularly the case because the Kenyan Situation at the ICC was not
originated by a referral by the UN Security Council. Consequently, the
request for a deferral is an unwarranted interference with the Court’s
mandate, its independence and impartiality.
We therefore submit that the request for a deferral by a section of the Kenyan
Government be rejected as being incompetent and frivolous.
On behalf of the Orange Democratic Movement and the Prime Minister of the
Republic of Kenya, The Rt. Hon. Raila Odinga, EGH, MP, I would like to
request you to bring this letter to the attention of all Council Members of the
Security Council and to have it issued as a document of the Council, as a
matter of great urgency.
Please accept, Your Excellency, the assurances of my highest consideration.
H.E. Mr. Li Baodong
President of the UN Security Council
For the Month of March 2011
c/o The Permanent Mission of the
People’s Republic of China to the United Nations
350, East 35th Street
New York, N.Y. 10016
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Cc: THE PERMANENT MISSIONS OF:
Austria
Bosnia
Brazil
China
Gabon
France
Japan
Lebanon
Mexico
Nigeria
Russian Federation
Turkey
Uganda
United Kingdom
United States
Cc: The African Union
Addis Ababa, Ethiopia