Kenya cases threat to peace, warns AU

From left: ICC Chief Prosecutor Fatou Bensouda,

Deputy President William Ruto and President Uhuru Kenyatta.

Sunday, October 27, 2013

In Summary

• 49 member states are pushing for ICC to defer trials and give Kenya a chance at national healing and combat terrorism as AG seeks to be enjoined as friend of court
• Letter to UN Security Council says matter will ignite tension nationally and compromise regional war on terror

By Walter Menya

The case against President Kenyatta and his deputy, Mr William Ruto, should be put on hold so that the two leaders focus on leading the fight against international terrorism, the African Union has told the UN Security Council.

They should also be freed to participate in easing ethnic tensions in the country, which pose a threat to internal security, the AU argues.

In its 20-page letter to the Security Council, the African Union describes terrorism as a threat to regional stability.

The African Union has brought unprecedented pressure to bear on the Security Council to order a deferral on the crimes against humanity cases facing the President and his deputy.

An appeals chamber at the ICC last week ruled that Mr Ruto should not be excused from attending court. The Prosecutor, Ms Fatou Bensouda, has appealed a decision excusing Mr Kenyatta from some sessions.

In the letter submitted to the council last week, the AU also said that Kenya had undertaken significant reforms in its courts and the police since the 2007/2008 post-election violence and the gains made in national healing and reconciliation could be undone if the cases facing Mr Kenyatta and Mr Ruto are not deferred.

The letter also said President Kenyatta and Mr Ruto have been leading peace and reconciliation initiatives in the country under the 2010 Constitution.

“Kenyans democratically elected their leaders in March 2013 and they expect that their leaders will discharge their constitutional responsibilities as elected executive leaders of the Republic of Kenya. This, if not considered, will be adversely impacted by the process at The Hague and thus, will undermine progress as well as threaten Kenya’s peace and stability,” the 49 African states whose representatives signed the letter, said.

“In light of the peace and security situation in Kenya and the region, the African Union member States would like to submit a formal request for a deferral of the proceedings against the President and the Deputy President of the Republic of Kenya.”

The UN Security Council President for the month of October, Azerbaijani’s Agshin Mehdiyev was given the AU letter by Kenya’s ambassador to the UN, Mr Macharia Kamau, on October 21.

The letter was drafted as a follow-up to the Extra-Ordinary AU Summit held in Addis Ababa, Ethiopia, on Monday last week.

During the Addis summit, the African countries present told Mr Kenyatta not to attend his trial, which opens on November 12 in The Hague. They said they would make a major statement on that day if the UN security council fails to defer the Kenya cases.

Mr Kenyatta and Mr Ruto are facing four and three counts of crimes against humanity, respectively, in connection with the 2007/2008 post-election violence in which 1,133 people were killed and 650,000 displaced. The violence was sparked by a dispute over the results of the 2007 presidential election.

This week, seven African ministers are set to meet the UN Security Council to push for the deferral of the Kenya cases. They will be led by the chairman of the AU Council of ministers, Dr Tedros Adhanom of Ethiopia.

The meeting, which was to be held in New York yesterday, will now be held on Thursday.

Yesterday, Attorney-General Githu Muigai said Kenya will use all the options available to her should the AU request for a deferral be defeated.

“We expect to reach a reasonable agreement with the UN Security Council and the ICC on this matter. However, Kenya reserves her right to all options available to her according to our domestic and international law,” he said in an interview with Radio France.

He said that even though President Kenyatta and Mr Ruto were taken to The Hague as individuals, the government has been filing submissions to explain facts on issues that have been coming up.

“Kenya has filed several amicus curiae submissions to clarify issues. We have continued to engage the court and we will cooperate” he said.

Kenya and the AU are pegging the deferral request on the provisions of Article 16 of the Rome Statute, which states that the Security Council can request the ICC to suspend any ongoing trials, or investigations for a period of 12 months, with a possibility of a further extension.