AU sends 39 letters to UN over Kenyan cases

Africa Union Commission chair Nkosazana Dilamini-Zuma

The People  
www.thepeople.co.ke, October 24, 2013 

By IRENE GITHINJI and WANJOHI GITHAE

The fate of the cases facing President Uhuru Kenyatta and his deputy William Ruto is now officially before the United Nations Security Council (UNSC), after Kenya and the African Union (AU) yesterday formally sent 39 separate deferral requests by African states to the UN body. The AU termed the security situation in Kenya as “very complex”, noting ICC proceedings may pose a threat to ongoing efforts on national healing and reconciliation as well as the rule of law and stability in Kenya and the region in the wake of rising terrorist threats.

Each of 39 African nations backing the deferral request sent identical letters to UNSC, in a move seen as a subtle indicator that their decisions were singular and their threat to quit the Rome Statute could follow in similar fashion should they be snubbed. The deferral request, sent on Tuesday (New York time), but yesterday Kenyan time, will likely be deliberated on by the UNSC at the end of next week, at a time when signals coming from the International Criminal Court indicate the court may have softened its stand on stringent measures earlier imposed on Kenyan leaders in relation to their separate cases.
Just two weeks after the AU stamped down its foot and demanded that the cases be postponed, the ICC allowed President Uhuru to attend only limited sessions of his case, a decision that the prosecutor has been slow to appeal against. Tomorrow, the court could ex- tend the same treatment to Ruto, both actions which are seen as a response to the AU demands to let the leaders deliver their constitutional mandate.
The reverse of the request was a threat by a large number of AU members to pull out of the Rome Statute, which was echoed yesterday as the 39 countries dispatched letters to the UNSC seeking deferral of the Kenyan cases. The AU urged the UNSC to consider the deferral request as an urgent matter and to deliver its ruling not later than November 10, two days before Uhuru is expected at The Hague court.
The letters said the September 21 terrorist attack on the Westgate mall demonstrated Kenya was a “Frontline State in the fight against terrorism” and that the proceedings against the two leaders would ‘distract and prevent them from fulfilling their constitutional responsibilities, including oversight for national and regional security. In a separate letter signed by the Kenyan Ambassador to the UN, Macharia Kamau, Kenya requested that Article 16 of the Rome Statute should, among other things, take into account the threat to peace, breach of peace or act of aggression likely to transpire in the light of prevailing and continuing terrorist threats existing in the Horn of Africa.
Similarly, Kamau said the deferral be based on efforts to prevent an aggravation of the situation with regard to peace and security in Kenya and its neighbouring countries as well as avail time during the deferral period for Ken- ya, in consultation with the ICC and Assembly of State Parties to the Rome Statute to consider how best to respond to the threat to international peace and security. “I would like to request you to bring this letter to the attention of all members of the Security Council and have it issued as a document of the Council, as a matter of urgency.
An identical letter, dated October 21, has been conveyed to the United Nations Secretary General,” stated Kamau in the letter, sent to Agshin Mehdiyev who is serving as Council President in October. “In light of the peace and security situation in Kenya and the region, the AU member states would like to submit a formal request for a deferral of the proceedings initiated by the ICC against President Kenyatta and his Deputy in order to provide them with the time required for the enhancement of the effort aimed at combating terrorism and other forms of insecurity in the country and the region,” the AU stated.
The AU letter went on: “We, the member states of the AU, hereby solicit the cooperation of the UNSC with a view to finding a sustainable solution to the issue and in particular ensuring that the AU’s request is considered positively.” But even as this occurred, the ICC Trial Chamber V(b) allowed Prosecutor Fatou Bensouda to add two witnesses in the case against Uhuru. The witnesses, P548, a Mungiki insider and P66, a sexual and gender-based violence expert, replace two other witnesses who withdrew from the case earlier.
The addition to the witness list was granted by Trial Chamber V(b) Judges, Kuniko Ozaki (Presiding), Robert Fremr and Chile Eboe-Osuji, who are scheduled to hear Uhuru’s case to begin on November 12. And for the third day running, the fifth witness, P487, testified against Ruto and his co-accused Joshua arap Sang. He recounted how he lost his property, estimated at Sh600,000 and how life became difficult after the violence, forcing him to seek refuge in an undisclosed place, being referred to as ‘location 5’ for about five months.
In the afternoon session, the witness contradicted his own evidence when he admitted that Ruto did not use the word ‘Kikuyu’ in his last rally in 2007. The witness who was being cross examined by lawyer David Hooper for the Deputy President, was at pains to explain what he meant when he said the then ODM bigwig had called for expulsion of Kikuyus in the area in the 2007 presidential campaigns.