Kenya sends mixed signals on the ICC – Part 4

In this final installment of a four-part series, ICC Kenya Monitor writes about the previous diplomatic efforts to have the Kenya cases deferred and asks what all this current activity means.

Kenya has been here before. After the initial shock on December 15, 2010 when the then International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo made public whom he intended to prosecute, the Kenyan government swung into action in the new year and began a high-level lobbying effort.

President Mwai Kibaki dispatched then Vice President Kalonzo Musyoka to see the heads of state of the African countries that at the time were members of the UN Security Council, namely Gabon, Nigeria, and South Africa. He also went to neighboring Uganda. Two other cabinet ministers were sent to six other African countries. All this happened in the first three weeks of January 2011 ahead of the regular African Union (AU) heads of state and government summit, which was held at the end of January. The message to the different African capitals was that Kenya had enacted a new constitution just five months earlier in August 2010, which triggered the transformation of the Kenyan state, including enhancing the independence of its criminal justice system. President Kibaki’s representatives told the African leaders that Kenya needed time to implement those changes to the criminal justice system so that any suspected perpetrator of the violence that nearly tore up the country in January-February 2008 could be tried at home.

This state-to-state lobbying did not, however, enjoy the support of half of the coalition government. The side of the coalition led by then Prime Minister Raila Odinga was opposed to the attempt to get the cases deferred by the UN Security Council. Their argument was that Kenya had already tried to set up an independent tribunal to handle the post-election violence cases and failed, so the ICC cases should be allowed to run their course.

Then Kibaki, on eve of his departure for the AU summit, announced in a news release the appointment of a new Chief Justice, Director of Public Prosecutions, and Attorney General. Odinga opposed the move saying that, contrary to the constitutional requirement that he be consulted on any appointment to a constitutional office, Kibaki had unilaterally appointed the individuals named. Odinga further said that although he and Kibaki had been discussing potential nominees to the different offices, they had not concluded those discussions. Other parts of the government chimed in with the out-going Chief Justice and Attorney General opposing the appointments, saying they went against the constitutional requirement any new office holders had to be recruited through a competitive and transparent process and not via the former method of an announcement from State House. It appeared that Kibaki’s announcement was aimed at bolstering his case before his fellow African leaders at the summit.

Despite the controversy back in Kenya, the African Union resolved that January to lobby the UN Security Council to defer the Kenya cases at the ICC for one year as the country followed through on the constitutionally required changes that would raise the independence and efficiency of the criminal justice system to internationally acceptable standards. In an informal session of the UN Security Council that was held some months after that resolution, it was made clear that the deferral of the Kenya cases at the ICC did not have enough support, and the matter ended there.

It is unlikely that Kenya expects that the outcome will be different this year from what happened two years ago. When what became dubbed as “shuttle diplomacy” in January 2011 in the Kenyan media was going on, Uhuru Muigai Kenyatta was Deputy Prime Minister and Finance Minister, and William Samoei Ruto was the Higher Education Minister. Kenya’s ambassador to the UN in New York at the time was and still is Macharia Kamau. Kenya’s ambassador to the AU in Addis Ababa at the time was and still is Monica Juma. Therefore some of the major players involved in the “shuttle diplomacy” in January 2011 are also involved this time around.

This year’s diplomatic push also goes against the advice of a government committee. A 10-member committee recommended in March last year that the government does not go the UN route. The committee presented its report to Attorney General Githu Muigai, who appointed the committee to advise the government on how to handle the ICC. Muigai formed the committee on the order of then President Mwai Kibaki. The president made the decision on January 23, 2012, the same day the majority of Pre-Trial Chamber II confirmed the charges against Kenyatta, Ruto, Sang, and former Public Service Chief Francis Kirimi Muthaura. The charges against Muthaura have since been dropped.

The committee said that for a request for deferral to succeed with the UN Security Council it must show that continuing a case at the ICC was a threat to international peace and security.

“The threshold of what constitutes a ‘threat to international peace and security’ is high in that an internal armed conflict (save where it produces consequences transcending national borders, such as, refugee flow) does not necessarily amount to such a threat,” the committee wrote in a footnote to its report.

“The Committee advises against any such further application,” it recommended while referring to the 2011 application to the UN Security Council to defer the Kenya cases at the ICC.

With such knowledge why would Kenya seek the UN Security Council to be involved in the Kenya cases again? And why would Kenya pursue such diplomatic initiatives when Kenyatta and Ruto have made categorical statements that they will attend their trials? Is it to begin preparing the Kenyan public for the possibility that Kenyatta and Ruto will not attend their hearings? Is it to “shake the trees” and see how the United States, Britain, and the European Union respond in spite of their oft-repeated declarations about a policy of “essential contacts only” with individuals charged at the ICC? Only time will tell.