10 May 2013

Recent developments in the Kenya ICC case: a summary

Posted by dumpendebat

There’s been a lot going on recently with the ICC case against Kenya’s newly-elected President Uhuru Kenyatta and his Deputy President William Ruto. Here is a summary:

ICC Amends Case Against Uhuru

On 8 May, the ICC amended its case against Uhuru to include charges that people were killed in Naivasha and Nakuru by gunshot wounds (in addition to other weapons — the charge that guns were involved is the new amendment). Uhuru stands charged by the ICC of having planned and funded violence (by Kikuyu people, against Kalenjin and Luo people) in Naivasha and Nakuru during the post-electoral crisis of 2007/08.

Kenya Requests ICC Charges Be Dropped

Apparently, Kenya sent a letter to the UN Security Council last Thursday, 2 May, requesting that the ICC drop all charges against Uhuru and Ruto. Yesterday, 9 May, Kenya’s Permanent Representative to the UN, Macharia Kamau, asked the security council to take action on the letter with ICC Chief Prosecutor Fatou Bensouda:

“What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case at the Hague without much further ado,” the petition says in part.

The statement warned that violence could break out in Kenya that would affect stability in the entire region if President Kenyatta and Mr Ruto were forced to attend trial at The Hague after having secured endorsement of the people in an election despite the charges facing them.

The petition questioned the jurisdiction, partiality and competence of the ICC, expressing the government’s reservations over the manner in which the cases facing the three have been handled.

… On Tuesday, Mr Kamau said the election of President Kenyatta and his Deputy William Ruto sent a clear message to the world that the two persons were not only innocent but also deserving of the highest office of the land.

Mr Kamau said the incoming administration should be given a chance to start off without the ‘yoke and burden of the past fettering their action.’

The envoy said the country’s top leadership cannot be expected to effectively perform their duties in an orderly manner ‘in the face of an offshore trail that has no popular resonance and that serves no national or international purpose.’

“Neither can the state be expected to be orderly under such circumstances,” he said.

“The UNSC must therefore play its role and bring this matter to a halt… we ask it to take the much needed political stance that Kenya must be given the time and opportunity to apply the principal of pre- eminence of National Courts,” added Mr Kamau.

Ruto Distances Himself from Request to Drop Charges

Then, Deputy President Ruto distanced himself from this request:

Mr Khan [Ruto’s lawyer] said Mr Ruto had cooperated with ICC since his case started and he would continue doing so.

“I have spoken to my client, His Excellency the Deputy President of the Republic of Kenya, Mr William Ruto, and I can confirm and he has made clear that he was not consulted on anything to do with New York. A letter being circulated is not government policy,” Mr Khan said in a telephone interview.

He said it was important to underline that Mr Ruto has cooperated with the ICC before the summons against him were issued, after they were issued, and he is currently cooperating and will respect all orders and directives of the ICC.

“His Excellency the Deputy President believes in the rule of law and he believes in Kenya observing its international obligations,” he added.

Bensouda Dismisses the Appeal

Today, 10 May, come reports that ICC Chief Prosecutor Fatou Bensouda dismissed the request that the cases be dropped:

The Chief Prosecutor of the International Criminal Court told the United Nations Security Council on Wednesday that Kenya had made “unfounded and incorrect” claims in urging it to end the cases facing President Uhuru Kenyatta and Deputy President William Ruto.

Fatou Bensouda described Kenya’s appeal to the UN Security Council last week as “a backdoor attempt to politicise the judicial processes” of the ICC.

Noting that she has not received a copy of the May 2 letter sent to the council by Kenyan UN Ambassador Macharia Kamau, Ms Bensouda said she was speaking in response to earlier comments made to the council by Rwanda’s ambassador.

Who Authorized That Letter, Anyway?

Now, it seems that there are even questions about who authorized the letter to be sent to the UN Security Council in the first place, and whether the fact that Ruto distanced himself from it, while Uhuru did not, betokens some kind of a split:

Multiple sources told Saturday Nation the letter by Kenya’s ambassador to UN Macharia Kamau on May 2 was traced to senior civil servants in the Kibaki administration.

Last evening, questions were still lingering on who authorised Mr Kamau to write the letter and whether Mr Ruto’s denouncement signified a split between the two men over the strategy of handling the cases facing them at the International Criminal Court.

While Mr Ruto has unequivocally denounced the petition through lawyer Karim Khan, President Kenyatta had not commented on the matter as we went to press.

More To Read

For analysis, I recommend these two pieces:

  1. “Kenyatta, Ruto and the ICC: major diplomatic earthquake in the offing” by Richard Dowden
  2. “Diplomatic Diversions” by Africa Confidential

I agree with Dowden’s take: Uhuru and Ruto are simply not going to go to the Hague. Their trials are not going to happen. Either the ICC cases will fall apart and charges will be dropped, or Uhuru and Ruto will just refuse to go, if it comes to that, and that’s going to mean the end of whatever credibility the ICC once had. I don’t see Western nations imposing serious sanctions on Kenya if it comes to ignoring the ICC: Kenya is far too important, strategically and economically, for the West to lose Kenya as a key ally in East Africa.

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