PHOTO | DPPS Deputy President William Ruto (left), his wife Rachel Ruto leave The International Criminal Court (ICC) after a status conference on May 14, 2013. DPPS
By SUNDAY NATION REPORTER newsdesk@ke.nationmedia.com
Posted Saturday, May 18 2013 at 23:30
Posted Saturday, May 18 2013 at 23:30
IN SUMMARY
- Country wants to generate enough political heat to bring an end to the cases before judges at The Hague
- Kenya remains anxious to show that defying the Security Council and the ICC should not be viewed as tantamount to the country’s being regarded as a rogue state
Despite pledges of co-operation, it is looking increasingly likely that Kenya’s diplomatic efforts towards the International Criminal Court will culminate in a showdown between states that support the continuation of the Kenyan cases before the court, on the one hand, and the African Union, on the other, which is likely to support Kenya’s efforts for a deferral or even a termination of those cases.
Kenya’s strongly worded letter from its Permanent Representative to the UN Mr Macharia Kamau called for an unconditional termination of the cases against President Uhuru Kenyatta and Deputy President William Ruto before the ICC. It was followed by Mr Kamau’s second letter last week, seeking an informal interactive dialogue between members of the Security Council and the Kenyan Representative to the UN.
Dated May 13, the second letter expressed gratitude to the President of the Council, Gabon’s Kodjo Menan because “he deemed it fit to share the contents of the (first) letter with all the members of the United Nations Security Council”.
The letter then “requests as soon as possible and at your earliest opportunity, for an informal interactive dialogue between myself and members of the Council to further elucidate the contents of my letter and to discuss the situation in Kenya and the International Criminal Court”.
Reports indicate that when Kenya’s first letter was tabled before the Security Council, there was no agreement on what should be done with it. Sources point out that the discussion on Kenya was initiated by Rwanda under “Any Other Business” on Thursday afternoon after a meeting on Guinea Bissau had ended.
According to available information, hours later, at 7 pm, Rwanda’s Eugene Richard Gasana emerged from the meeting, shaking his head. “They don’t get it”, he said, apparently referring to non-African members of the Security Council. “Africa is angry about this.”
One account of the meeting before the Security Council shows that the members were divided on the Kenyan request, and that although it had the support of African members of the Council — Morocco, Togo and Rwanda — others refused to support it, or were non-committal.
While Guatemala suggested that Kenya’s request for termination of the cases should be referred to the informal working group on international tribunals, the United States — which is not a member of the ICC — also supported this suggestion.
Morocco suggested that the concerns of the Kenyan delegation should be heard at the Security Council and then referred to the working group on international tribunals if this was deemed necessary.
Argentina proposed that Kenya write a letter to the Security Council asking for a meeting or an interactive dialogue. Kenya’s second letter seems to be following the advice that was given by the Council on the first letter.
Another complaint which arose at the Council meeting was that ICC Prosecutor, Fatou Bensouda, when she is in New York, does not even make a courtesy call on the Permanent Representative of Kenya. “No respect,” as one Council member put it.
Manufactured claims
In the first letter, Mr Kamau accused the Office of the Prosecutor of bringing charges against the Kenyan accused persons, based on “claims that might have been false or manufactured”.
Mr Kamau alleged that it had since emerged that the evidence on which the charges were based could have been “procured through inducement and or corruption”, further charging that “the manner in which the cases are being conducted is neither impartial nor independent”.
He asserted that “some individuals” accused of crimes before the ICC have not only been the “greatest agents of cohesion but have been at the forefront and are the glue that binds the country during the election and the transition period”.
He predicted that their “absence may undermine the prevailing peace and any resultant insecurity may spill over to neighbouring countries”.
Mr Kamau argued that “the very suspects who are being prosecuted ... received overwhelming support of the citizens of Kenya in the March 4, 2013 elections” and concluded that “looking at the votes garnered by Mr Uhuru Kenyatta and Mr William Ruto, the Kenyan populace is ready for them to be their political masters”. Mr Kamau took a swipe at civil society bodies which “are currently being used by external dark forces to espouse their own policies using the Rome Statute”.
While Mr Kamau pressed on with the request for the termination of the Kenyan cases, Deputy President William Ruto, who had earlier dissociated himself from the first letter by Mr Kamau, made a confident appearance before the ICC last week where he pledged not only his continued personal cooperation with the court but also that of the Government of Kenya.
Local media reported that Mr Ruto was embarking on a new round of shuttle diplomacy within Africa to seek support for the Kenyan position in relation to the ICC.
The pledge of continued cooperation that he gave to the court appears incongruent with shuttle diplomacy, which in the past has been associated with the politicisation of the judicial process of the court as a way of undermining its effectiveness.
Mr Ruto has, however, denied that the purpose of his trips is to seek support for Kenya’s position on the ICC and explained that the visits are aimed at positioning Kenya as a leader in regional trade, peace and security endeavours.
Many would have expected that Mr Ruto’s bold denunciation of Kenya’s actions before the Security Council would result in some kind of internal political crisis n Kenya because, if it is true that he was not consulted, it would amount to taking him for granted on a matter on which he ought reasonably to have been consulted.
However, not only has President Kenyatta remained silent about the goings-on in New York, but Kenya’s representative has pressed on with what he had begun through last week’s second letter.
It would seem that despite Mr Ruto’s protestations, there is an internal government strategy that is beginning to emerge.
While Kenya’s first letter was an audacious attack on the office of the prosecutor expressed in language diplomats would ordinarily not use, experts say the demand it contained cannot actually be met by the Security Council which has no legal power to terminate a case before the ICC.
Kenya must have known this before writing the letter. Why, then, did Nairobi make the request knowing the ICC could not meet it?
Analysts think that Kenya is spoiling for a fight with the international community with a view to generating sufficient political heat that will paralyse or somehow bring an end to the Kenyan cases before the ICC.
In this regard, the letter to the Security Council, referred to by some of its members as “the African position”, was not just a letter from Kenya, but through it, Kenya was speaking on behalf of Africa, expressing what has been a protracted frustration with the Security Council’s position on Africa Union-International Criminal Court relations.
The letter was both a high-profile attempt to grab the attention of African governments and galvanise the continent towards collective action against the ICC. It could not have achieved this intention without dropping the niceties of diplomacy.
If this analysis is correct, Mr Ruto’s planned trips around Africa will elucidate and explain Kenya’s position and seek the support of the AU for this position. In this regard, it will be useful to watch next month’s AU summit in Addis Ababa.
Political heat
In all this, the only conundrum is that there is no legal way to make the cases before the ICC disappear. It must be the hope of Kenya that political heat will make the prosecutor drop the charges against Mr Kenyatta and Mr Ruto, just as she did against Mr Muthaura. But how does Mr Ruto’s performance at The Hague fit into this scheme?
Kenya remains anxious to show that defying the Security Council and the ICC should not be viewed as tantamount to the country’s being regarded as a rogue state.
Kenya would like to demonstrate that it has acted reasonably against a global order that has remained dismissive of its good intentions and acted as a bully towards Kenya, using the ICC. When the chips are down, the performance at The Hague will form part of this positioning.
Additional reporting courtesy of Inner City Press
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