Obama envoy backs deal on Uhuru case

US President Barack Obama

Thursday, November 28, 2013

By ISAAC ONGIRI and KEVIN J. KELLE

In Summary

• The amendment of Rule 134 of the Rules of Procedure and Evidence now exempts Mr Kenyatta and Mr Ruto from being present at trial trials and allows use of video link as a substitute for attending court.
• Foreign Affairs and Trade Secretary Amina Mohamed yesterday said that Kenya had given notice for a special Assembly of State Parties to discuss amending Article 27 of the Rome Statute.
• If the request is allowed, then another Assembly of State Parties conference may be convened in February next year to debate the proposal.

The US has welcomed a decision by ICC member states allowing Kenya’s leaders to skip part of their trial at The Hague.

The US ambassador to the United Nations, Ms Samantha Power, said “the remarkable efforts of the Assembly of State Parties members, including the Kenyan delegation”, had produced an outcome that “protects the rights and interests of both victims and defendants while allowing the judicial process to proceed without delay.”

The US is not a member of the International Criminal Court, but it had opposed Kenya’s campaign at the UN to win a deferral of the cases against President Kenyatta and his deputy, Mr William Ruto.

Mr Kenyatta is facing four counts of crimes against humanity charges while Mr Ruto and his co-accused, radio journalist Joshua arap Sang, are facing three each.

The amendment of Rule 134 of the Rules of Procedure and Evidence now exempts Mr Kenyatta and Mr Ruto from being present at trial trials and allows use of video link as a substitute for attending court.

Adoption of the amendment means that the two leaders can be represented in court by their lawyers without necessarily being required to be in the courtroom in person.

SANG' WILL NOT BENEFIT

Despite the amendment, Mr Sang will not benefit because he does not meet the conditions for excusal as set out in the amendment moved on behalf of Kenya by Guatemala and Greece.

Before the decision was reached, Mr Ruto had been compelled to personally be in court as a result of which he spent much of his time at The Hague at the expense of his State duties as he attended the trial sessions. However, the court on several occasions excused him from being present for limited periods to attend to state duties.

Human Rights Watch and Amnesty International criticised the consensus decisions reached by the Assembly of State Parties, saying, they entrenched inequality.

Both groups focused on an approved amendment to the ICC rules of procedure that opens the way for national leaders to be excused from appearing at their trials in The Hague.

Amnesty International said this was “the first time a distinction for persons with official capacity has been recognised in international trials for crimes under international law”.

Human Rights Watch said Mr Kenyatta and Mr Ruto might still be required to attend their trial sessions.

Besides Kenya, the ICC also pushed through an amendment to Rule 68, which allows introduction of absent and pre-recorded witness statements. The rule was accepted, but with a caveat that it would not apply to the two Kenya cases.

Despite getting the concessions, Kenya was yesterday pushing for total immunity from charges against heads of states.

The excusal clause was unanimously adopted at the Assemblies of State Parties (ASP) conference plenary on Wednesday night before the closure of the session Thursday.

Foreign Affairs and Trade Secretary Amina Mohamed yesterday said that Kenya had given notice for a special Assembly of State Parties to discuss amending Article 27 of the Rome Statute.

If pushed through, the amendment will shield the President and his deputy from prosecution until they leave office.

Sudanese President Omar Al Bashir, who has been indicted by the ICC would similarly be shielded.

If the request is allowed, then another Assembly of State Parties conference may be convened in February next year to debate the proposal.

“We expect such a meeting to be convened after the 90-day notice period expires, in the first quarter of next year,” Ms Mohamed said.

In a related development, the African Caribbean and Pacific (ACP) parliamentary assembly meeting in Addis Ababa, Ethiopia, yesterday demanded that the charges facing the two Kenyan leaders be dropped altogether. The declaration was made at the conclusion of the 34th ACP conference.

“Today we passed a declaration supporting AU’s recent decision that no sitting president or head of government should be tried at the ICC,” said Kenyan Deputy National Assembly Speaker Joyce Laboso, also the co-president of the ACP–EU Joint Parliamentary Assembly.