DP William Ruto
The popular Westgate shopping mall in Westlands, Nairobi.
THE INDISPENSABLE MEN: President Uhuru Kenyatta and DP William Ruto. Ruto's lawyer argued that as ther serving Deputy President of Kenya, is required to return to Kenya to discharge his ordinary constitutional duties.
A commentator once said by the time ICC is done with the Kenyan cases , the court will have been dragged through mud and would possibly have lost its face.
Recent happenings in the court with regard to the ongoing cases against President Uhuru Kenyatta and his deputy William Ruto point to an increasingly assailed court, a court increasingly getting caught up in Kenyan political shenanigans.
The African Union scheduled a meeting to discuss a possible mass pull-out from the ICC, Foreign Affairs minister Amina Mohammed told BBC that the trials are annoying, Uhuru sought to be exempted from continuous trial at the court and most remarkably, Ruto managed to obtain an adjournment for his ongoing trial over the Westgate terror attack.
Before Ruto could make the adjournment application, the Dean of the African diplomatic corps in Nairobi Kelebert Nkomani of Zimbabwe had announced at a live event in State House on Sunday that Ruto should be allowed to come back to “join the nation” in resolving the problem.
The adjournment request by Ruto which premised on the horrific Westgate Attack was remarkable in many ways and may forever change the history of the cases. In the request was a double-edged sword for both praise and criticism.
“In the immediacy, Mr Ruto, as the serving Deputy President of Kenya, is required to return to Kenya to discharge his ordinary constitutional duties which include participating in security briefings and consultations and involvement in other ongoing and very sensitive national investigations.
Thereafter, Mr Ruto will be required to deal with the aftermath of such traumatic and tragic event for Kenya including attending funerals and other affairs of state,” Ruto's application for adjournment read.
If the court- the judges and the prosecution- were to deny the adjournment, the court would appear to be insensitive to what was obviously quite a heavy situation. In this sense, the request was a trap.
If the court agreed to the adjournment, as it indeed eventually did, it would in effect be recognising Ruto's official capacity contrary to Article 27 of the Rome Statute on irrelevancy of the official capacity.
Moreover, Article 27 is already awaiting determination at the court's appeal chamber following Prosecutor Fatou Bensouda's appeal of an earlier decision by trial chamber which appeared to ignore the Article.
By allowing an adjournment on its basis, the trial would risk being accused of ignoring a suspensive order issued by the appeals chamber with regard to Ruto's attendance.
The matter of Article 27 is even more relevant given that Ruto argued specifically on the basis of his official capacity. He could have argued on it as a Kenyan and most likely the court would have granted it, but no, he argued on it as a Deputy President.
And no, Ruto was not asking for an adjournment for one week, as was eventually decided. He was asking for an adjournment “until such a time as the security situation in Kenya resolves itself or an order of the trial chamber issued.”
The other risk involved was the danger of making a precedent upon which similar requests will be staked. This is almost guaranteed given Ruto's capacity.
Probably aware of the backlash it would have attracted by opposing the adjournment, the prosecution reluctantly agreed to the request. They however demanded that it be limited to a short period.
The prosecution however flatly refused to buy into any argument based on Ruto's official capacity. Also, they argued that Ruto's role in resolution of the crisis was not indispensable. They said the Kenyan government is intact and Ruto can even participate using modern technology in the security discussions and deliberations.
Judge Chile Eboe-Osuji eventually sided with the prosecution and gave a limited adjournment of one week. To avoid the impression that he was violating the suspensive order given by the court of appeal on continuous attendance of trial, Eboe-Osuji encouraged Ruto to apply for lifting of the suspensive order.
The final order from Osuji was that Ruto will report back to the Hague either at the end of the one week or when appeals chamber rules on the suspensive order request- whichever comes earlier. In other words, if the appellate chamber denied Ruto's request today, he would be required to report to the Hague tomorrow.
This is not the only quagmire the Westgate crisis exposed ICC to. Immediately after Ruto was granted the adjournment, President Uhuru wrote to the court seeking to be exempted from continuous presence in his November trial, again on the basis of his official capacity.
It could as well have been a coincidence. It's however hard to explain why the President had never applied for this waiver or associated himself with Ruto's application which is subject of the ongoing appeal.
Critics also came down hard on the court: “ICC wrong to grant Ruto one-week leave. Kenyatta and Ruto must not be allowed to use Westgate Mall tragedy to evade justice,” Prof Makau Mutua tweeted echoing prosecution's earlier sentiments cautioning against “opportunism.”
Mutua's statement was unique in that it raised an issue many keen followers of the ICC knew it is big but which in light of the sensitive Westgate attack could not be discussed openly. He paid a big price for it as he was wont to: criticism and insults from on-line and social media users.
Ruto did not help matters for the ICC. Immediately the adjournment was granted on Monday, he made a statement at the ICC steps which he repeated later on when he arrived in Kenya. He claimed that the attackers had waited for him to be away on trial at the ICC and the president to be away in New York attending the UN General Assembly to attack Kenyans.
He said it was instructive to note that the President had skipped a meeting a week before which was discussing the Somali because “I am required to continuously attend court here at the Hague.”
He hoped that that “some people” will begin to contextualize what is going on and begin to appreciate the challenges that Kenya is going through and the “complications brought by what is going on here.”
The message was crystal clear: Ruto and Uhuru's presence in the country was essential in maintenance of peace and security. The same message had been passed on by the AU to the ICC a week before and by Uhuru to the UN in a note verbale announcing he would skip the annual event.
In the AU letter, chairman Hailemariam Desalegn had said that he had been “reliably informed” that Kenyan constitution does not allow the president and the deputy to be out of the country at the same time.
It said if Ruto continues to be at the Hague, Uhuru is likely to miss the UN General Assembly (currently ongoing) in New York and the “New Deal Somalia Conference” which took place in Brussels on September 16.
Besides these two events, the AU also said Kenyans expect to celebrate their 50 years of independence “under the guidance and visionary leadership of their duly elected leaders.”
Already, AU has taken a position that the cases should be referred back to Kenya. In the letter, the AU said until its request is considered and clearly responded to, the cases should not proceed.
This explains why one of the agenda of the upcoming extraordinary AU October 13 meeting is mass withdrawal from the ICC and as a consequence, a resolution on whether the two should attend their trial.
In any case, by staking the claim that the DP and the President cannot be away at the same time, the AU is sending a clear message that should the court eventually convict the two, the AU will not accept to hand them over for detention. Their trial at the Hague is therefore in vain.
Against this background, one needs little convincing to know that at the October 13 meeting, AU will most certainly ride on the Westgate attack to press the case against the Kenyan ICC trials. The October meeting is likely to be the final confrontation. The unfortunate Westgate attack has only catalyzed the siege on the court.
Of the 54 AU members, 34 are signatories to the Rome Statute which has membership of 122 states. If AU passed a resolution that all 34 states pull out and this came to pass, the ICC would be left with 88 countries.
Although this figure is many states above the 60 threshold, it would no doubt jolt the court in a big way. The move would no doubt occasion international discourse on the credibility of the court as states who wish to please Africa, for whatever reason, assault it.
The fate of the four African judges in the court; Vice President Sanji Mmasenono Monageng (Botswana), Akua Kuenyehia (Ghana), Chile Eboe-Osuji (Nigeria) and Kenya's own Joyce Aluoch would also be in jeopardy. Most of them are in very early stages of their terms.
Article 36 (4) (b) of the Rome Statute on qualification, nomination and election of judges says that judges shall be a national of a state party. In other words and the fact that withdrawals have no retrospective effect, careers may be on the line.
Eboe-Osuji who is presiding over the Ruto case and sitting in the Uhuru trial chamber is serving his second year of a nine-year term. When the matter of the effect of Kenya's motion to withdraw on the Ruto case came up last week, the judge was all ears and very circumspect.
He severally clashed with Ruto's lead counsel Karim Khan. At one point, he told Khan the difference between Kenya and other “noble” states which are not signatory to the ICC is that they do not have serving senior government officials charged at the ICC in their individual capacities.
So rattled was Khan on Eboe-Osuji's assertiveness on the matter that Ruto himself had to take the stand and re-assure the court of continued cooperation, the withdrawal motion notwithstanding. And that was the last time he allowed Ruto to take the floor inside the courtroom.
Besides the October meeting, there is the upcoming Assembly of State Parties to be held at the Hague between November 20 to 22 at The Hague. Earlier in June, Kenya had wanted a special session of the ASP held on an “urgent basis” to discuss the trials “possibly through an amendment.”
The bureau of the ASP dismissed the request. It is not however clear whether Kenya has dropped the amendment idea but chances are that Kenya will lurch onto the Westgate matter to re-introduce the matter at the meeting.
The nature of amendment Kenya is seeking is not clear. It would probably be something to shield the President and the Deputy President from trials away from Kenya in line with the AU resolution.
According to the Rome State, amendment to the statute can either be effected through consensus or two thirds majority of the state parties. Kenya would therefore require the support of 80 ASP members if it cannot build consensus on any amendment.
This is certainly a tall order which is why a political approach rather than a legal one is what Kenya would go for. And that is why the Assembly of State Parties is the meeting to watch, to tell which way this matter will be settled.
Kenya has already indicated it is seeking an extraordinary approach to settling the ICC matter. In an earlier letter to the UN Security Council, Kenya attempted to incite the UNSC by appealing to the council's responsibility as “the political abettor of last resort on matters related to peace and security even as related to the ICC.”
“It is important and necessary that members of the UNSC do not see themselves as disinterested observers of the ICC legal process, but rather recognize the potential and the dire folly of the OTP as regards Kenya and the danger it poses to international peace and security in Eastern Africa,” a letter by Kenya's ambassador to the UN Macharia Kamau said.
Kenya made it clear that with the cases on their leaders, the Rome Statute is undergoing a test as to its veracity, usefulness and impartiality. It asked the UNSC to “pronounce itself" saying “ICC has shifted its focus in general.”
“It is time to act, and act decisively,” Kenya appealed to the UN. In the light of UNSC snub, Westgate Attack has opened up a front where the AU will now not just act but act decisively against the ICC at Kenya's behest.
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