Experts: ICC may yield to AU demands

By ALLY JAMAH

Kenya: Africa Union decision seeking referral of cases facing President Uhuru Kenyatta and his Deputy William Ruto in Addis Ababa, Ethiopia follows a similar resolution passed last year.

The resolution, released July 16 last year, after an Ordinary Session of the AU also mandated AU commission to present an objection to United Nations against International Criminal Court (ICC) cases facing Uhuru and Ruto.

Law Society of Kenya chairperson Eric Mutua says the AU resolution, accompanied by the threat from African States to withdraw may help to turn the tide in favour of the Kenyan suspects.

He explained that since African States have a significant leverage over the ICC due to their huge membership of 34, their request cannot fail to make an impact on ICC Prosecutor Fatou Bensouda against convicting President Kenyatta.

Judicial process

“The court wouldn’t want to lose such a huge number of members. Infact, if African States walk away from the court, the institution would lose at least 80 per cent of its work. It would be left much weaker than ever. The AU decision is a political strategy to influence a judicial process. The ICC is a creature of politics and its work may often be influenced by political decisions outside the court,” he said. He explained that the AU move has no legal impact on the crimes against humanity cases facing Uhuru and Ruto, but it is a tactic to intimidate the judicial process at The Hague to suit political interests.

Lawyer Mbuthi Gathenji told The Standard that the request by AU was not in vain since it was putting significant pressure on Bensouda to drop the cases and have them referred back to Kenya.

Gathenji said that if he were Bensouda, he would have relieved himself of the burden of trying the cases, claiming that they are gradually falling apart and getting a conviction would prove difficult.

 “We have seen several significant witnesses recant their evidence against Uhuru and Ruto. One of the judges also withdrew from the case citing shortcomings on how the investigations were conducted by the prosecutor. So the case is difficult to win,” he said.

He added it was not impossible for the cases to be terminated and referred back to Kenya.

“Kenya has both the jurisdiction and the machinery to deal with the cases. There is absolutely no reason why the cases cannot be returned here. So going to the AU is a wise move that Uhuru did,” he said.

ICC Outreach Co-ordinator for Kenya Maria Kamara said a previous application by government to defer the cases to Kenya failed to convince the judges that the country was conducting genuine investigations.

Gathenji indicated that International Crimes Division of the High Court can handle the cases, adding that such a mechanism is already in operation in Uganda.

He noted the Kenyan case is unique since it was not referred to the ICC by the Government. He said the ICC prosecutor took the initiative to investigate and try the cases after the country failed to establish a credible local mechanism.

“There is nothing wrong with the court. It is just that the prosecutor is not handling the process correctly leaving some people to feel that she is being used to drive a certain agenda against African leaders,” he said.