ICC uncertain on action if Uhuru fails to attend trial

By LUCAS BARASA

In Summary

• ICC Outreach Coordinator said President Kenyatta is still required to attend trial next month pending the petitions he has filed.
• Ms Kamara says ICC will abide by the United Nations Security Council decision on request for the deferral of cases facing President Kenyatta and Mr Ruto by the African Union.
• Human rights lawyer Njonjo Mue took issue with the State’s description of cases facing President Kenyatta and Mr Ruto as a national problem

The International Criminal Court is uncertain on what action would be taken to President Uhuru Kenyatta if he fails to attend his trial on November 12.

“I can’t speculate,” ICC Outreach Coordinator for Kenya and Uganda, Maria Mabinty Kamara said.

(VIDEO: Will President Uhuru Kenyatta skip ICC trial?)

Speaking at Panafric Hotel in Nairobi during the monthly Journalists for Justice Forum, Ms Kamara said President Kenyatta is still required to attend trial next month pending the petitions he has filed.

Ms Kamara said President Kenyatta and his deputy William Ruto had committed themselves that they will continue to cooperate with ICC.

There has been speculation that a warrant of arrest would be issued if President Kenyatta fails to attend the trial as demanded by some of his supporters.

Ms Kamara said the President and his deputy have been cooperating fully with ICC including when they were issued with summons to appear before the court.

The duo, Ms Kamara added, had also complied with conditions not to interfere with witnesses or intimidate them.

She said 30 witnesses are lined up to give evidence in the ongoing Ruto and journalist Joshua Arap Sang case. The witnesses are crime based, linkage and experts.

NO COMMUNICATION ON DEFERRAL
She said the ICC will abide by the United Nations Security Council decision on request for the deferral of cases facing President Kenyatta and Mr Ruto by the African Union.

She however said there has been no communication from the court whether the request had been received.

Ms Kamara said the ICC could leave Kenya to handle case facing journalists Walter Barasa if the country establishes credible proceedings against him and charges the former Eldoret based correspondent with the charges the ICC has lined up for him.

(Read: Court to decide how to handle Barasa case)

“ICC has principle of complementarity. It will only investigate if assembly of state party is unable or unwilling to do so,” Ms Kamara said.

She said Mr Barasa could challenge the admissibility of his case at the Hague but the state has to establish to a process to investigate him on same crime.
“The process has to be genuine,” Ms Kamara said.

Mr Barasa is seeking to stop legal proceedings in Kenya that could lead to Kenya extraditing him to the ICC to face charges of interfering with witnesses in the case facing Mr Ruto and Sang.

Human rights lawyer Njonjo Mue took issue with the State’s description of cases facing President Kenyatta and Mr Ruto as a national problem, yet the Head of State had termed it personal before the March election.

Mr Njue said the ICC cases facing the three Kenyans were not about them, Kenya’s sovereignty or the African Union but for the 1,133 people who died following the 2007 post-election violence, the 600,000 people who were rooted from their homes, scores of women who were raped and infected with HIV/Aids and men who were forcefully circumcised.

“The cases are not for one or three people or those who have mobilised all resources of state and the continent to put a spanner in the will of justice,” Mr Njue said.

Mr Njue said Mr Ruto is on record saying it would take ICC 90 years to initiate the Kenyan cases, a “time when we shall all be dead,” and that it is Parliament and the government that took Kenya to the Hague by refusing to establish a local tribunal or act on Kenya’s worst violence since independence.

“As a law abiding country, we should stick to the Hague process. Sovereignty does not mean leave us alone, we shall call you when we have a problem like Westgate attack. Sovereignty is about being responsible to protect,” Mr Njue said.

Mr Njue said of the eight cases being handled by ICC, five were referred by governments of those countries including one by Uganda President Yoweri Museveni of Lord Resistance Army leader Joseph Kony.

Two of the cases were referred to ICC by the UNSC while the “Kenyan case was referred to the ICC through a process started by the AU itself when it appointed Kofi Annan.”

“Kenya called on ICC when it failed to commit itself to do what it committed under the Rome Statute it signed voluntarily in 1999 and ratified in 2005. ICC is about victims regardless of how powerful politicians are,” Mr Njue said.

'POORLY ATTENDED' AU SUMMIT
Mr Stephen Lamony who is senior adviser, AU, UN and Africa Situation Coalition for ICC said no individual including the President enjoys immunity from prosecution under the Kenyan constitution and Rome statute for crimes against humanity, war crimes or genocide.

He said a decision adopted by a poorly attended “extraordinary summit” of the AU calling upon the UNSC and ICC to postpone the trial of Mr Kenyatta is a step backwards in the continent's fight against impunity.

Pre-summit proposals for a “mass withdrawal” from the ICC treaty and for total non-cooperation by African states were rejected at the AU meeting. Mr Lamony said less than a third of the 54 AU heads of state or governments attended or were represented by ministers at the summit last weekend.

Many of the 130 African and international NGOs that wrote to African ICC states parties calling on them to reaffirm their support for the court believe that governments expressed their objections to the purpose of the meeting by not attending.