Kenya’s ICC deferral bid at the UNSC comes to an unhappy end
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March 18, 2011 (WASHINGTON) – The Kenyan government has failed to get
the support of the United Nations Security Council (UNSC) for
deferring the prosecutions of six individuals by the International
Criminal Court (ICC) accused of masterminding post-election violence
in 2007-2008.
JPEG - 32.5 kb
FILE - Kenya’s suspended higher education minister William Ruto reacts
during a news conference in the capital Nairobi December 15, 2010
(Reuters)
This month the ICC judges issued a summons to the finance minister and
deputy prime minister Uhuru Kenyatta, son of Kenya’s founding father
Jomo Kenyatta, and William Ruto, the higher education minister who has
been suspended to fight a corruption case.
The rest are cabinet secretary Francis Muthaura, former
Industrialization Minister Henry Kosgey, who quit the cabinet to fight
separate corruption charges in court, former police chief Mohammed
Hussein Ali and radio executive Joshua Arap Sang.
They are charged with murder, deportation, rape, inhumane acts,
persecution and torture.
The violence erupted after allegations of electoral fraud following
the announcement that Mwai Kibaki won the majority of votes for the
presidency against his main rival Raila Odinga.
Former UN Secretary General Kofi Annan brokered a power-sharing deal
between the Orange Democratic Movement (ODM) headed by Odinga and
Party National Unity (PNU) led by Kibaki. Furthermore, they agreed
that perpetrators of the violence would face justice. A commission of
inquiry was formed to investigate the violence and recommended those
behind it should be tried in Kenya or The Hague.
The ICC intervened after the Kenyan parliament shot down several
attempts to establish a local tribunal and many MP’s said they wanted
the cases investigated at the Hague. Kibaki and Odinga gave the ICC
prosecutor the green light to initiate prosecutions in late 2009
without making an explicit referral.
However, once the ICC prosecutor named the suspects he wants the
judges to charge, the Kenyan government announced its intention to
request a deferral pursuant to Article 16 of the Rome Statute which
allows the UNSC to suspend the court’s process in a specific case for
12 months that can be renewed indefinitely.
Nairobi initially said the move was needed to allow time for setting
up local tribunals to try the six suspects instead of seeing them
hauled to the Hague. The African Union (AU) adopted a resolution last
January backing Kenya’s request for a deferral from the UNSC.
The UNSC reluctantly agreed to discuss this issue this month but Kenya
was warned beforehand by Western permanent members such as the United
States and Britain that its request had no chances of surviving.
The meeting was initially scheduled for Wednesday but delayed till
Friday because of council’s deliberations on a Libya resolution.
Sources told Sudan Tribune that even African countries sitting on the
UNSC "lacked enthusiasm" to endorse Kenya’s deferral request despite
the AU resolution.
The French envoy at the UN Gerard Araud told reporters after the low
key meeting that "the conditions of the implementation of Article 16
are not fulfilled". Other diplomats elaborated by saying that the
situation in Kenya does not constitute a threat to international peace
and security warranting UNSC intervention.
Araud suggested that the Kenyan government should seek to challenge
the ICC’s jurisdiction and the admissibility of the case in line with
Article 19 of the Rome Statute.
However, legal experts say that in order to succeed in this the Kenyan
government must prove that it is prosecuting the same suspects for the
same crimes.
Other diplomats echoed France’s view.
"Every council member has told them [Kenyans] individually that their
request will be rejected," a council diplomat told Reuters on
condition of anonymity. "One point of today’s meeting was for the
council to collectively make that clear to the Kenyans".
It is not clear how the Kenyan government will respond to its failure
at the UNSC. Odinga’s party has sent a letter to the council saying it
does not agree to the deferral.
(ST)
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