Kenya’s new strategy after UN top organ rejected deferral

Proceedings at the ICC trial chamber in The Hague. [PHOTO: FILE/ STANDARD]

By KIPCHUMBA SOME

[email protected]

Kenya: The Jubilee administration has changed tack in its pursuit of a deferral of the cases facing President Kenyatta and his deputy William Ruto at the International Criminal Court.

This follows defeat of African Union’s push at the United Nations Security Council to have the cases deferred for a year.

The government is now proposing amendments to rules of procedure and how evidence is given as contained in the ICC statute governing the crimes against humanity cases.

This week, Kenya will table the amendments during the Assembly of State Parties (ASP) to the Rome Statute of the ICC, which takes place from November 20-28 at The Hague.

Among the procedures, Kenya will be urging the 122 State Parties to amend, is the one requiring suspects be physically present during their trials.

Foreign Affairs and International Trade Principal Secretary Karanja Kibicho said Kenya would also seek to amend the rule allowing witnesses to hide their identities while testifying.

“Kenya, as a State Party, is not on trial here but individuals. Therefore Kenya as a member deserves certain rights and one of them is its right to be heard,” he said.

The move is the clearest indication the government has run out of options on how to halt the cases and now sees co-operating with the ICC, but on its own terms, as the best option.

Mr Kibicho explained that the government enjoys the support of the majority of ICC member states including the ones that did not support it at the UN Security Council. “We have serious support from fellow State Parties including the guys who acted cowardly yesterday (Friday) at the Security Council,” he said.

Of 122 ICC members, 34 are from Africa, Asia-Pacific states (18), Eastern Europe (18), Latin America and Caribbean states (27) while Western Europe and rest of countries have 25.

Support

Kibicho pointed out the UK High Commissioner to Kenya Dr Christian Turner had announced government would support the Kenyan effort at ASP meeting.

The public affairs officer at the UK embassy in Nairobi Mr John Bradshaw had said the UK had tabled a proposal to adopt the use of video technology.

“There will be a segment dedicated to addressing AU concerns on the cases. We encourage all parties to engage constructively on the proposed amendments,” said Mr Bradshaw.

President Kenyatta and Mr Ruto have requested not to be physically present during the entire proceedings, a request resisted by prosecutor Fatou Bensouda.

The Kenyan delegation to the ASP meeting will be led by Ruto, who will be going back for the resumption of his case on November 18.

Other top government officials attending include Attorney General Githu Muigai and Foreign Affairs Cabinet Secretary Amina Mohammed.

Kibicho also described the outcome of the UN Security Council as a “win” for Kenya. “No one voted against us meaning they value our friendship,” he said.

However, in its reaction to the Security Council’s decision, the government hit out at the eight members who did not vote terming them “cowards”.

In a statement which made little pretense of diplospeak that governments use when dealing with each other, Kenya said of the States that abstained; “The same members and five others chose to abstain, showing clear cowardice in the face of a critical African matter, and a lack of appreciation of peace and security issues they purport to advocate.”

“This result was not unexpected considering that consistently some members of the Security Council, who hold veto powers, had shown contempt for the African position,” reads the statement released by Ministry of Foreign Affairs on Friday.

“The Security Council has failed the African continent, which will have to make its own judgement in coming days and weeks about how it wishes to engage with the Security Council, which obviously does not believe the voices of more than one quarter of its members is significant enough to warrant its serious and purposive attention,” the statement added.

Ms Amina Mohammed, who was the conveyor of Kenya’s position, went on: “Kenya regrets failure of important members of the UN Security Council to have due consideration of Kenya’s critical role in stabilising the Horn of Africa and the Great Lakes regions, and their reckless abdication of global leadership.”

The statement, strong in language and tone, echoed the tough stance President Uhuru and Ruto have taken before, with references to neocolonialism and disregard for Africa’s sovereignty and interests at the international level. 

Amina called for urgent reforms at the UN Security Council, saying “it must be appreciated that the outcome of this vote demonstrates that the Security Council does not serve the interests of a majority of its members.”

This appeared to infer Kenya might rally African States through the AU to make demands as a bloc, probably with the caveat they may pull out or roll back on UN resolutions if she is not listed to.

This could be discerned in the paragraph: “Inevitably, it must be appreciated that the outcome of this vote demonstrates that the Security Council does not serve the interests of a majority of its members and is clearly in need of urgent reform. It cannot be that a few countries take decisions that go against reason and wisdom in a matter so important to nearly one billion Africans.”

Kenya also echoed the call of other members of the UN who have said there is a need to break the stranglehold of the five veto powers.

However, this effort has been attempted before by countries more influential and richer than Kenya but these efforts have come to naught due to overwhelming power of the veto members.

Following the collapse of Kenya’s efforts at the UN, former US undersecretary of State for Africa Jendayi advised Africa to pull out altogether.

Dr Frazer has been vocal in her opposition to the Kenyan cases saying they were weak and only proceeding because the West wants them to.

It remains to be seen what next step the AU will take following the rejection by the UN, although a mass pullout by the 34 African members of the ICC is unlikely.

“The continent is sharply divided between the Anglophone and Francophone over the pullout issue,” said Prof Macharia Munene, a lecturer at the United States International University.

This division became apparent during an extra-ordinary meeting of AU in October where majority of Francophone countries refused to back efforts by Anglophone members to pull out of the Rome Statute.

Kaloleni legislator Gunga Mwinga has asked President Uhuru Kenyatta and his deputy William Ruto to attend the ICC trial at the Hague following Friday’s negative vote at the UN Security Council.

– Additional report by Ngumbao Kithi