International Justice Monitor

A project of the Open Society Justice Initiative

Kenya sends mixed signals on the ICC – Part 2

In this second part of a four-part series, ICC Kenya Monitor writes about the Kenyan government’s attempts to have the United Nations Security Council terminate the cases before the ICC. 

The Kenyan government has been executing a three-pronged strategy over the past two months with regards to the International Criminal Court (ICC). In addition to court filings and public statements, as discussed yesterday, there is a  third element of the strategy, which is the most visible. This is the diplomatic push to either terminate the Kenya cases or at least have them brought home.

It is the part of the strategy aimed at assuring President Uhuru Muigai Kenyatta’s and Deputy President William Samoei Ruto’s political base that they are taking the fight to Office of The Prosecutor, which seems to be the lightning rod for all the criticism of the ICC’s work. During their campaigns for high office, Kenyatta and Ruto made the ICC central to their candidacy saying that the cases against them were an international conspiracy to deny Kenyans an opportunity to choose the leaders they want.

The diplomatic push began after Trial Chamber V declined on April 26 to allow three requests Kenyatta’s lawyers had made, including asking the judges to terminate the case against their client because a prosecution witness had become compromised. Kenya’s ambassador to the United Nations in New York wrote to the Security Council on May 2 asking the Council to terminate the Kenya cases at the ICC. Kenya’s UN ambassador Macharia Kamau argued that, among other things, the ICC prosecutor had weak cases and that Kenya’s leadership was democratically elected, so the sovereign will of the people should be respected.

Kenya was first able to have the note verbale discussed at the Security Council during a routine briefing ICC Prosecutor Fatou Bensouda gives on the progress of the situation in Libya as required by Security Council Resolution 1970. Although Kenya is not a member of the Security Council, Rwanda is one of the two African countries that are non-permanent members of the Council. Rwanda is also a member the East African Community, an economic bloc that Kenya belongs to and is an anchor state.

On May 8, Rwanda’s UN ambassador Eugene-Richard Gasana spoke on Libya as did all the members of the Council, However, he also spoke generally about the perceived bias of the ICC. Gasana said Kenya’s note verbale provided a “compelling case against the methods of work of the Office of the Prosecutor on the Kenya cases.” He called on the council to address this issue because it had become of concern for many UN member states, including those who are signatories to the Rome Statute.

The ICC “has been selective in its methods for investigating and prosecuting perpetrators of serious international crimes, since it has failed to prosecute similar crimes committed in other parts of the world with impunity,” said Gasana while elaborating on his general comments.

“Furthermore, as has been stated on many occasions, it is difficult to understand how equal justice can be served if the Security Council can refer cases to the Court while the Council’s permanent members have discretionary power to block any prosecution of their own nationals or allies,” he said.

In response, Bensouda told the Council that the ICC “has always and will always continue to respect the sovereign equality of all States. However, the ICC will not shy away from investigating individuals for any alleged crimes, irrespective of their status.”

Bensouda said that based on what Gasana said, the Kenyan note verbale was “unfounded and incorrect.”

“It is a backdoor attempt to politicize the judicial processes of the Court,” she said, adding that her office had not received a copy of the Kenyan letter, and she would respond to it in detail when that happens.

Though Kenya’s note verbale featured in the May 8 Security Council meeting on Libya, the country’s ambassador to the UN also sought a separate meeting to discuss the Kenya cases at the ICC. The meeting was held on May 23 and, according to reports in Kenyan newspapers, Council members indicated to Kenya that it would not consider the East African nation’s request to terminate the ICC cases.

The third part of this article looks at the push to have the Kenya cases discussed at the African Union summit.

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