Kenya’s ICC deferral bid at the UNSC comes to an unhappy end

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.

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)