Kenya’s president & PM in disagreement over ICC deferral ahead of UNSC meeting

March 13, 2011 (WASHINGTON) – The United Nations Security Council (UNSC) is scheduled to hold an consultative session next week devoted to discussions on Kenya’s request for halting prosecutions by the International Criminal Court (ICC) against six individuals including senior government officials.

Prominent among the six suspects are 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.

The ICC Pre-Trial Chambers ruled that they have cases to answer and should appear before the court at the Hague on April 7th. All six pledged to honor the summons.

The case relates to the post-election violence that broke out in 2007-2008 that reportedly left 3,500 people injured and up to 600,000 forcibly displaced.

Former UN Secretary General Kofi Annan brokered a power-sharing deal between the Orange Democratic Movement (ODM) headed by Raila Odinga and Party National Unity (PNU) led by Mwai 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 at the time 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.

But in a letter by Kenya to the UNSC sent this month it argued that the ICC process represents a threat to the stability of the country ahead of 2012 elections and risks stoking ethnic tensions.

This week, the UNSC pushed by South Africa agreed to discuss the request by Kenya at an informal consultation session next Wednesday. The Pan-African news agency (PANA) said that Kibaki has been invited to join the deliberations at the UN headquarters but this was denied by his spokesperson.

Diplomats on the council, however, said Kenya had little support for a move to halt the ICC process.

“We’re happy to meet with the Kenyans and discuss it with them,” a Western diplomat told Reuters. “But I don’t know of a single council member who actively supports the idea of a deferral.”

The United States, Britain, France — all permanent veto-wielding council members — are among those that oppose deferring the proceedings, envoys said.

Furthermore, Odinga’s ODM sent a letter to the UNSC saying they don’t approve of the deferral request.

“This petition presents a set of incontrovertible facts which will assist The Security Council and other interested parties to understand why the Kenyan cases at the ICC should neither be deferred nor referred.”

“The involvement of the ICC was necessitated by Kenya’s rejection to establish a national judicial mechanism to deal with the crimes committed. In fact, the Government of Kenya repeatedly made verbal and written commitments to cooperate with the ICC and indicated that if it was unable to prosecute the perpetrators of the 2007/08 post election violence by September 2009, the ICC should do so. Those written and public commitments were made by the Government to the ICC Prosecutor both at The Hague and during his official visits to Nairobi,”.

The AU requested a deferral for Sudanese president also charged by the ICC but this found little appetite at the council particularly from Western members.

(ST)