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| US President Barack Obama |
Thursday, November 28, 2013
By ISAAC ONGIRI and KEVIN J. KELLE
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.
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