Deferral bid lost as eight abstain from key vote

  President Uhuru  with Senators Gideon Moi (Baringo),

Charles Keter (Kericho) and Kipchumba Murkomen

(Elgeyo Marakwet) leave Marigat High School in Baringo

County, where the president was to assess the flood

situation in the county, yesterday. The UN Security

Council rejected deferral of the president’s case at

the ICC.  [PHOTO: BONIFACE THUKU/STANDARD]

 November 15th 2013 

By JUMA KWAYERA and Reuters

jkwayera@standardmedia.co.ke

 The United Nations Security Council yesterday rejected Kenya’s bid to delay by a year the international trial against President Kenyatta and his Deputy William Ruto.

The 15-member Security Council was split. Seven members, including Russia and China, voted for a draft resolution to approve the move, while eight members, including France, the US and UK, abstained.

Security Council resolutions need nine votes and no vetoes by any of the five permanent members — Britain, Russia, China, France and the United States — to be approved.

The consequence of yesterday’s decision leaves Kenyatta and Ruto with diminished legal options at the International Criminal Court where an application by the President to dismiss his case, is pending.

After a series of legal setbacks at the ICC, Kenya had resorted to a political strategy to compel the international court to terminate the cases or defer them by year.

The next opportunity for the President to avoid court comes next week when the State Parties of the Rome Statute gather for a conference on Thursday next week. African countries are expected to push the case for Kenyatta, or any other Head of State, not to attend court in person.

Yesterday’s UN vote was a setback for the African Union’s bid to extricate Kenya from a legal-cum-diplomatic knot. It was also the second time a petition to defer or terminate the Kenyan cases had failed at the UNSC.

“What that means is that the accused must attend trial,” said Speaker of National Assembly Justin Muturi. However, Muturi, a lawyer by training says, there are still legal avenues Kenyatta and Ruto can pursue, although he admits it all depends on international politics of the day. “The beauty about ICC is that it moves forwards and backwards. It does not operate like a normal court; it is not a proper judicial process as its decisions are informed by international politics,” Muturi pointed out.

Lubanga case

He gave the example of the trial of Congolese warlord Thomas Lubanga, who was convicted on appeal after going through a full trail and being acquitted.

Njonjo Mue, an expert on international law and human rights, shares the Speaker’s view. Mue said the outcome of the AU petition to UNSC was a setback to Africa, which in the past two years has aggressively pushed for reforms in the UN judicial system to shield its leaders from international criminal justice.

“For the draft to be formally before the council, at least nine of the 15 members should have taken part in voting. That means that Africa in general and Kenya in particular lost the only available avenue to defer the cases,” Mue, a member of Kenyan chapter of the International Commission of Jurists.

The result implies Kenyatta, who is under pressure on the domestic front not to travel to The Haguewhen the hearing of his case commences next February must comply with the court or risk a warrant of arrest in default. The agenda of the African Union was being pushed by Rwanda, one of the three African non-permanent members of the Security Council. The others are Morocco and Togo. The other five non-African permanent members are Argentina, Australia, Guatemala, Azerbaijan, Luxembourg, Pakistan and the Republic of Korea. The five permanent members with veto powers are the United States, the United Kingdom, France, Russia and China.

While Guatemala, Argentina, Australia, Luxemburg and Korea sided with US, UK and France in abstaining, Pakistan, Azerbaijan, Togo, Morocco and Rwanda teamed up with China and Russia in voting for a deferral.

However, the vote did not meet the requisite nine-member threshold for the AU deferral request to become formal. Prior to the vote Rwanda had on Tuesday circulated a draft resolution to defer the cases for one year on account of the security risks in the wake September 21 Westgate terror attack in which 73 people were killed.

The cases have triggered a backlash against the ICC, which some African leaders portray as a tool of Western powers to undermine the sovereignty of African states.

The US, the UK and France, Latin America and Australia in abstaining had argued that, while the grounds for a deferral were reasonable, granting the request would have set a precedent to be referenced by potential rogue leaders to escape international criminal justice.

Exert’s opinion

University of Nairobi political science lecturer Dr Adams Oloo, observed that the abstentions were tactical and strategic at the same time.

He said since Kenya was a key ally of the US and Britain in eastern Africa, the West had been cautious in its push for justice for the victims of 2008 post-election violence.

“The failure to marshal the numbers at the UN Security Council means that Kenya and the African Union have exhausted all the avenues of postponing the cases. The ball is in the president’s court to choose to attend the trial. He has always said he will cooperate. He will now wait to see if the ICC will allow him to attend some sessions or allow him delegate his powers while he is away,” explains Oloo.

At home, the decision is likely to escalate political heat and anti-ICC sentiments. TNA chairman Johnson Sakaja says the UNSC decision means the outcome of the cases are predetermined.

Sakaja, a confidant of the President, said: “It’s unfortunate that some members of UNSC did not understand our issues well. The President and Deputy President are committed to a fair trial and continuous cooperation with the court. But the prosecutors’ conduct does not guarantee them fair trial. All we needed was time to deal with the prosecutor’s misconduct application that has been filed at the ICC.”

Kenyatta has filed an application seeking to examine the credibility of the self-confessed Mungiki gang members, who the prosecution has lined up as witnesses.

“The prosecutor’s decision to line up self-confessed criminals to testify against the president amounts to subversion of justice. These are people who have in their own statements admitted to have killed innocent Kenyans, they need and must be charged in a court of law,” said Sakaja.