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Kenya’s quest to end cases at the Hague enters crucial stage

Saturday May 25 2013

Kenya’s bid to have the African Union push the International Criminal Court to drop charges against President Uhuru Kenyatta and his deputy has kicked off a storm that could define the court’s future relationship with African states and bring into focus the continent’s ability to handle cases of crimes against humanity.

The African Union summit was on Saturday expected to decide on an application by Kenya to either defer, transfer or dismiss the ICC cases, a bid made on Thursday.

The proposal calls for the deferment of the cases to dates to be agreed. The other option seeks to transfer the trial of the cases to Arusha, Tanzania, while the third is to terminate the cases altogether.

“There is an overwhelming support from all African states that the Kenyan case should be terminated. The resolution has been agreed by the AU Executive Council and forwarded to the heads of state and government. We are saying that Kenya needs to be given a chance to build on the reforms that it has started,” Permanent Secretary in Uganda’s Ministry of Foreign Affairs James Mugume said.

A top diplomat, who did not want to be named until the issue is discussed by the heads of state and government, said the proposal was presented to the AU Executive Council by Uganda and supported by South Sudan.

It has also emerged that all the East African Community member states — Uganda, Tanzania, Rwanda and Burundi — were involved in lobbying for the inclusion of the ICC issue in the main agenda at the AU summit.

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This saw the Executive Council waive the three-month notice required before an issue is accepted as part of the main agenda of the ordinary session of the assembly of the heads of state and government.

The issue, sources in Addis Ababa said, is being handled cautiously as it is believed some diplomats were not comfortable with endorsing the option of terminating the cases.

Those against this approach are said to have been pessimistic about Kenya’s commitment to deliver justice to the victims of the 2007 post-election crisis. The other two options however appear to be widely acceptable: To transfer the cases to Arusha or postpone the cases to dates to be agreed.

Other diplomats said off-the-record that they would have preferred to have the agenda focused on a discussion of how African countries should relate to the ICC. The issue is also being cautiously handled to avoid the perception that the AU is being confrontational with the ICC, analysts and sources in Addis Ababa said.

But lawyers said while African countries may be feeling collectively that they are not getting justice from the ICC, they cannot withdraw until they have an alternative to deal with the issues for which the ICC was formed.

Meanwhile, Kenya’s parallel plea to have the United Nations Security Council to end cases before the ICC — being pushed by Kenya’s UN envoy Macharia Kamau — appeared to hit headwinds last week.

It still remains unclear who authorised Mr Macharia to make the request to the UN. Attorney General Githu Muigai and Deputy President William Ruto have since distanced themselves from it.

It has emerged that while the Council’s 15 members indicated that they generally “recognised the legitimacy” of Kenya’s request to be heard in regard to the ICC cases, the Security Council will not take any action.

Kenya’s presentation hinged on the contention that the Security Council has “some measure of political oversight” regarding the functioning of the ICC and the implementation of the Rome Statute that established the court.

Kenya has been on a diplomatic offensive over the two weeks prior to the AU summit, lobbying other African countries to pass a resolution on the cases.

Kenya will be banking on the widespread belief that the ICC is targeting African leaders to influence the AU summit to pass a common position on the Court. It is also banking on the instinct for self-preservation common among African leaders, the majority of whom are not sure what they might be called to account on once they leave power.

Developments will be closely watched in the larger East African region. The ICC has been working to apprehend perpetrators of crimes against humanity and genocide in Uganda, the Democratic Republic of Congo, Rwanda and Sudan.

Joseph Kony, the Lord’s Resistance Army warlord, is wanted by the ICC, as is Sudan’s President Omar al-Bashir. Both men have defied ICC warrants for their arrest on war-crimes charges.

In March, Congolese warlord Bosco Ntaganda surrendered to the US embassy in Kigali and was taken to The Hague to face charges.

Uncertainty looms about what he will say in his defence to the four counts of war crimes and three counts of crimes against humanity in eastern DRC that were brought against him, testimony that could prove damaging to Rwanda, observers said.

Kigali has consistently denied reports by international agencies including the UN accusing it of committing heinous crimes of nearly equal measure as the genocide it suffered in 1994 — most recently, that it instigated and backed the M23 rebels.

The proposal presented to the AU argues that the ICC trials risk destabilising Kenya when it is undertaking reforms to ease ethnic tensions and build equity in access to national resources.

AU Commissioner for Peace and Security Ramtane Lamamra told reporters in Addis on Friday that the AU is working on the option of the termination of the cases.

Despite strong support among African states during the Rome Treaty negotiations for the ICC which came into effect in 2002, the Court’s focus on African conflicts and elite perpetrators since then has triggered massive opposition from most African leaders.

A joint stand against the Court will not only damage the image of the ICC but also worsen the relations between it and African countries.

Kenya will also have scored a major political point that will have an impact on the outcome of the two Kenyan cases facing President Kenyatta, his deputy William Ruto and radio journalist Joshua Sang.

“The best option is for the cases to be deferred until after the president and the deputy president are out of office. Local laws that give the president immunity from prosecution should apply. The will of Kenyans expressed through the elections should be respected” said Akere Tabeng Muna, the president of the Pan African Lawyers Union and member of the Africa Peer Review Mechanism.

“For the AU, the option is to build its own strong institutions that can handle such cases. AU has what it takes to achieve this. But when such an institution is not available, we should submit to the intentional jurisdiction. The AU members voluntarily signed the Rome Statue,” he added.

Far reaching implications

A decision by the AU to withdraw from the Rome Statute would send a strong message that the Court is political and have huge implications for funding.

Should Africa withdraw from the Rome Statute, the alternative to the ICC would be to strengthen the African Court on Human and Peoples’ Rights, based in Banjul, The Gambia.

Law Society of Kenya chairman Eric Mutua said the withdrawal of African countries that form the majority of the Rome Statute would have a negative impact on the operations of the Court.

“While it is not clear whether such a resolution will be unanimous given that there are African countries strongly opposed to the withdrawal or referral, the only alternative will be to resort to African courts to deal with these international crimes, but these courts will also have problem with the issue of funding,” said Mr Mutua.

The East African Legislative Assembly has also passed a motion to enhance the capacity of the East African Court of Justice to deal with international crimes and crimes against humanity. Currently, the court deals with trade disputes between companies and between partner states.

But Kenya’s bid faces legal hurdles. According to the Rome Statute, a case that is under way will still go on even if the country concern withdraws from the statute.

The withdrawal from this Statute, the law says, shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

Kenya is accusing the Office of the Prosecutor of pursuing an agenda that contradicts “the sovereign will of the people as expressed in the March elections.”

However, Sunil Pal, head of the legal section at the Coalition for the International Criminal Court, argues that Kenya’s political elite is seeking to frame the ICC as having put the entire Kenyan state in the dock, rather than select individuals alleged to be responsible for the worst of the crimes committed during the post-election violence.

Those pushing for the common AU position were banking on the mantra that the ICC has politicised the Kenyan cases and that the country has jurisdiction over the two cases on account of the reformed judiciary.

Stephen Lamony, a senior adviser of the Coalition for the International Criminal Court on AU, UN and Africa situations, argued that politicising the Kenyan cases will not let the suspects off the hook.

“Using the weight of the government to argue its case before the Security Council based on some vague, illusory threat, amounts to an extrajudicial request for impunity,” said Mr Lamony.

By Fred Oluoch, Steve Mbogo and Kevin Kelley

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