You can’t try a sitting president, AU leaders tell International Criminal Court

Sunday, October 13th 2013, By OSCAR OBONYO
NAIROBI, KENYA: The African Union has finally cast a shield around President Uhuru Kenyatta – thanks to the body’s unequivocal declaration that no sitting African President should be tried at the International Criminal Court ( ICC).
The import of the tough stance by the AU is that Kenyatta may after all not proceed to The Hague next month to face crimes against humanity charges.
And to ensure this, the AU has given the United Nations Security Council an ultimatum of up to November 12 – the same day Uhuru trial is scheduled to begin – to defer the Kenyatta case.
If by November 30 the African leaders would not have received any communication from the UN, the AU will reconvene yet again to deliberate on the way forward. It is presumed that the plan of action may involve mass withdrawal by African nations from the Rome Statute.
The decision, arrived at by the African Heads of State during a special session in the Ethiopian capital Addis Ababa, is also meant to benefit Sudan President Omar Al-Bashir who is an earlier ICC indictee.

Race hunting
Equating ICC activities to “race-hunting”, President Kenyatta made scathing attacks at the ICC in his address to the summit, which was incidentally initiated by Kenya. Africans, he observed, would love to have an international forum for justice and accountability.
“But what choice do we have when we get only bias and race-hunting at the ICC? Isn’t respect part of justice? Aren’t our sovereign institutions worthy of deference within the framework of international law? If so, what justice can be rendered by a court, which disregards our views?” he said.
“The ICC has been reduced to a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers.
“America and Britain do not have to worry about accountability for international crimes.
“Although certain norms of international law are deemed peremptory, this only applies to non-Western states,” said Uhuru in his hard-hitting speech.
Essentially, this development is a major boost to the president, who has over the last one month given clearest signals of reluctance to proceed to The Hague for trial.
Since his election as Kenya’s fourth President in March, African leaders have sustained pressure on ICC to go slow on Uhuru and his deputy William Ruto, who were indicted earlier in 2010 following the 2007-08 post-election violence.
Foreign Affairs Cabinet Secretary Amina Mohammed, gave the latest hint on Wednesday when she said there is no serving Head of State anywhere in the world, “who has ever been brought before ICC or appeared before any lower courts”.
While admitting that the president was indicted while he was a Deputy Prime Minister, Amina was categorical that the situation had “totally, completely and absolutely” changed since Kenyatta’s election as President.
The African heads have previously lamented that the court unfairly targets them, an argument that has gained currency among a host of local politicians.
Although word was already doing rounds, the Elgeyo Marakwet County Senator, Kipchumba Murkomen, formally kicked off the crusade for the country to withdraw from the Rome Statute, essentially setting the stage for yesterday’s developments.
The vocal first-term legislator argued that there was need for Parliament to reconvene and have another look as to how the government relates with ICC.

ICC calendar
Instructively, Murkomen played host to Uhuru and Ruto during his homecoming party, just two days before the hearings of Deputy President and journalist Joshua arap Sang resumed.
It is during this occasion that the president asserted he would only cooperate with ICC if the ICC calendar of hearings was amended to avoid a situation where the two of them would all be out in the Netherlands for hearings. ICC obliged.
Sources inside the closed-door deliberations of the Council of Ministers confided to The Standard on Sunday that Kenya had placed two requests for consideration – that the ICC cases be deferred and that the ICC be substantially reformed.
Members agreed on the first request but were apprehensive on the latter noting that ICC was an independent institution and besides Africa lacked the necessary numbers to push for such changes.  
It was resolved, among other agreements, that a five-member committee of the executive council, including one Kenyan, be formed to deliver the AU resolution and ultimatum to the UN next month.
And as if to make sure other similar Kenyatta and Al-Bashir cases do not come up, it was also resolved that any African country wishing to refer any cases to ICC must first refer to the AU for guidance and possible approval.
While Uhuru seems to have secured a breather, the fate of his deputy remains in abeyance, as AU’s proposed privileges are silent on deputy or vice presidents.
In the meantime, members of the AU agreed to embark on their own mechanism of trying cases of crimes against humanity.
The first step is to strengthen the African Court of Justice and Human Rights.
Separately, President Uhuru was asked to write a letter to the UN Security Council seeking deferral as provided for in Article 15 of the Rome Statute
Some of Africa’s key Heads of States, including Jacob Zuma (South Africa), Goodluck Jonathan (Nigeria), Yoweri Museveni (Uganda), Robert Mugabe (Zimbabwe), Paul Kagame (Rwanda), Jakaya Mrisho Kikwete (Tanzania), Omar Al-Bashir (Sudan) Michael Sata (Zambia) and host, Ethiopian Prime Minister Haile Mariam Desalegn, were among those who spearheaded the deliberations.
The latest developments are partly a result of spirited efforts by Ruto, Amina and lately, Leader of Majority in the National Assembly, Mr Aden Duale, who have been engrossed in a shuttle diplomacy to win over the support of African countries.
Locally, a host of politicians have all along dissuaded Kenyatta and Ruto against standing in the dock at The Hague. Senate Majority Leader Kindiki Kithure, who spearheaded a motion in the Senate calling for the pullout, says, “Kenyans have no faith in the ICC nor the intentions of the prosecution team”.

Termination of charges
And a Ugandan national, Dr David Matsanga, kicked off an earlier campaign by raising the alarm in May that the ICC was planning to detain President Uhuru and Ruto.
Before yesterday, Uhuru’s defence team had made several attempts to evade the trials including filing an application requesting for the termination of his charges altogether over alleged legal misconduct by the prosecution.
“The defence respectfully requests the Chamber to permanently stay the proceedings on the basis of an abuse of process or order an evidential hearing before the start of trial to determine the issue of abuse of process,” requested Uhuru’s lawyer Stephen Kay.
The lawyers cite “serious, sustained and wide-ranging abuse on the process of the court.”
oobonyo@standardmedia.co.ke