Kenyans last week watched in dismay as African Union Commission chairman Jean Ping assured Vice President Kalonzo Musyoka of the AU’s support for Kenya’s bid to seek a deferral on the post-election violence cases being considered by the International Criminal Court.
The question that lingered in the minds of many was whether Mr Ping had really been listening to the reasons advanced by Mr Musyoka on why the Kenya government would desire the African Union to request a deferral from the UN Security Council on its behalf. For Mr Ping’s benefit, I will once again spell out the two reasons advanced by Kenya’s “shuttle envoy.”
Mr Musyoka was of the view that Kenya is a sovereign state and therefore should be allowed to deal with its own problems. Secondly, that Kenya was willing to deal with the post-election violence locally and it was reforming its institutions to deal with the accountability issue.
The response by the AU chair was disturbing, first because an Article 16 deferral under the Rome Statute can only be sought where there is a threat to the peace and security of a country.
No such threat was invoked by Kenya’s vice president during the meeting. Secondly, because Mr Ping is only too aware of the lack of success attending the AU’s attempts to seek a deferral for the case against Sudan’s President Omar al Bashir before the ICC.
The events since the request was put before the UN Security Council in 2008 has put the AU in an embarrassing position as no response has been received from the Security Council.
In an effort to retaliate and mount pressure on the UN Security Council to respond to its requests, irrational decisions hitting at the ICC have characterised AU Summits in the recent past with the most irrational one so far being the resolution passed at the Summit held in July 2009, calling on African State Parties to the Rome Statute to weigh their obligations to the AU in comparison with those of the Rome Statute.
This resolution also urged member states not to co-operate in the arrest and surrender of President Bashir. The result of this resolution was that President Bashir was able to visit two countries that are ICC member states. However, subsequent similar visits have been impossible to execute.
President Bashir’s planned visits to Zambia, Senegal, Libya and a second visit to Kenya in 2010 failed to materialise despite his having confirmed attendance. This was a direct result of pressure mounted on the governments of these countries both nationally and internationally not to host a suspected war criminal.
All this contributed to the perception that the AU is transforming itself into a toothless bulldog.
Having observed all these developments, the question one would ask is: Why would the AU want to set itself up for another obvious failure?
Seeking a deferral on the Kenyan case at this point in time would be a doomed exercise from the onset. This is because Kenya’s peace and security have been bolstered by all the ICC initiatives conducted to date seeking to bring accountability for the post-election violence.
It is an open secret that a majority of Kenyans support the ICC process and opinion polls conducted just after the ICC prosecutor announced the six suspects he preferred charges against indicated that 87 per cent of Kenyans had confidence that justice would be served through the ICC process.
In addition, the assertions by the government that it is working on setting up mechanisms to deal with the post-election violence are just that, mere assertions.
In any event, this is not the first time the government is discussing how the post-election violence perpetrators would be tried locally; this has been their talk for the past three years. There has been no political will to actually establish such a trial process.
Attempts to enact legislation in line with the recommendations of the Commission of Inquiry into the Post-Election Violence on the establishment of a special tribunal to bring accountability for the violence have been sabotaged twice in parliament and once at Cabinet level.
Three years later, no meaningful prosecutions have been conducted and in most cases acquittals have been reached as a result of shoddy investigations by the police.
In some instances, calculated cover-ups have been conducted by contaminating evidence so that convictions cannot be sustained.
What guarantees can the government give that its new resolve to revamp domestic accountability institutions will actually be seen to fruition? None. It is a well-known fact that the Kenya government has perfected the art of doublespeak.
The AU cannot guarantee on behalf of Kenya the promises made by the government to reform its institutions will come to pass.
In any event, this cannot be the basis for an Article 16 deferral, if the AU sets itself up to seek one, they are certainly setting themselves up for failure.
Kenya’s peace and security has been bolstered by the current initiatives seeking to ensure a holistic achievement of transitional justice and the ICC process is part of this process.
The AU should advise the Kenya government to challenge the International Criminal Court’s jurisdiction under Article 19 of the Rome Statute on the grounds that it is genuinely willing and able to prosecute cases domestically.
It is notable that this will be an admissibility challenge under Article 19, which is distinct from a deferral under Article 16 and it is made to the court, not to the Security Council.
Stella Ndirangu is a legal officer at the Kenya Section of the International Commission of Jurists