Why Kenya changed its stand on Hague process

By Juma Kwayera

The Government has buckled on its resolve to shield the six post-election suspects from the International Criminal Court’s possible prosecution.

This follows sustained pressure from the US and the international community on President Kibaki and Prime Minister Raila Odinga to allow the ICC judicial process take its full course.

The pressure is beginning to bear on the Grand Coalition Government, which in the run-up to this week’s African Union summit in Addis Ababa, Ethiopia, kicked off a continental campaign to rally African countries to reject the Rome Statute.

But the drive has suddenly switched to a search for deferral of the cases by the United Nations Security Council.

Postpone cases

And the divergent positions in Government on the issue have exposed the coalition to scrutiny by the US and other development partners. They have expressed misgivings on the Government’s sincerity to guarantee justice to post-election violence victims.

Vice-President Kalonzo Musyoka, who has been on whistle-go, whistle-stop diplomatic mission to east, central and southern African countries, has had to alter his message to justify Nairobi’s discomfort with ICC.

From withdrawal from the Rome Statute in consonance with a Bill passed in Parliament that calls for reversal of Kenya’s signature to the ICC, Kalonzo now says Nairobi wants the cases against the Ocampo Six deferred until after the General Election next year, Kibaki is yet to ascent to the Bill.

Citing Article 16 of the Rome Statute, Kenya wants the cases against suspended Higher Education Minister William Ruto, former Industrialisation Minister Henry Kosgey, Deputy Prime Minister Uhuru Kenyatta, Postmaster General Hussein Ali, Head of Civil Service Francis Muthaura and radio presenter Joshua Sang postponed for one year.

The VP’s message is having promulgated a new Constitution, Kenya now has the legal capacity to address post-election issues domestically.

However, a source at the Foreign Affairs Ministry said external pressure had forced the Government to revise its approach.

"The US, although not a signatory to the Rome State, supports the ICC through the United Nations Security Council. The US funds most of the UN programmes.

"It is therefore keen to see justice done. President Barack Obama keeps tabs on events in Kenya, particularly the electoral process and judicial reforms. He doubts the political elite is keen to end impunity," the source said.

While moving the Motion to withdraw from ICC, Ruto observed: "…There will be a completely new Judiciary capable of handling most problems we thought could not be handled. I believe we have the capacity to handle these matters."

With regard to the International Crimes Act, it is possible to bring in another Bill to continue to criminalise the crimes that have been mentioned by that Act.

The hasty retreat from the hard-line position points to the success or failure of the VP’s mission in rallying African states against the ICC.

When The Standard on Sunday first got wind of news of Kenya’s intention to frustrate Ocampo through the African Union, the Justice Minister Mutula Kilonzo initially denied knowledge of the matter. In a text message, Mutula said he was not aware of such a Motion against the ICC.

The Motion Kenya intends to file at AU is a consequence of another passed by Parliament last month. AU legal counsel Ben Kioko, a Kenyan, is heading Nairobi’s push against ICC, which has no support in the Maghreb region of the continent. The campaign has also roped in Kenya’s ambassador to Ethiopia, Monica Juma Kagwanja.

In Nairobi, PNU strategist Peter Kagwanja admitted, "something was happening" but denied that Kenya intends to rally the rest of Africa to pull out of the ICC.

"Kenya is not rallying other African countries against ICC. Withdrawing from the ICC would be devastating. For ICC to be a factor in Kenya at present is a function of the Executive," says Kagwanja, alluding to the anti-ICC Bill awaiting presidential assent.

Go out alone

Even if Kenya gets African Union support, it needs 60 days to file a substantive motion for withdrawal from ICC. The earliest it can do so is during the July summit. It is, however, doubtful if Kenya will get the backing to keep Ocampo at bay.

Early last week, AU Commission chairman Jean Ping told Kalonzo that AU countries would not pull out of ICC. Ping said if Kenya wishes to withdraw from the international court, it could do so on its own.

East African Law Society vice-president James Mwamu says: "It is critical that Kenya demonstrates it is committed to zero tolerance for any international human rights violations and have the domestic will and capacity to enforce this will."

Asked about her country’s position, acting South African High Commissioner Sibongile Mambasa was non-committal.

Coalition disputes

"I cannot say whether my Government’s position has changed because we have not been given direction. We have not been informed of anything," she said.

The import of Sibongile’s word is her country has not changed its stand on ICC, which it supports together with Ghana, Botswana, Nigeria, Tanzania, Mauritius, Senegal and Mali. Save for Nigeria, the rest of the countries have better human rights records. When he returned from his sojourn, Kalonzo exuded confidence that he had the backing of at least 14 countries.

However, the campaign, which Kalonzo says sums up the President’s stand, has elicited strong reaction from Washington and other Western capitals. It has also split the Grand Coalition.

The Party of National Unity and Orange Democratic Movement face internal disagreements on the divergent positions taken by their leaders on the ICC process. The discordant positions have ignited the passions that have in the past preceded internecine factional fighting in the Grand Coalition.