Kenya’s bumpy ride in quest of deferral of the Ocampo Six case

Kenya faces a difficult task in securing the support of all 15 members of the United Nations Security Council to defer the Kenyan case at the International Criminal Court after the United States and European members signalled they might not vote for it.

In Nairobi, the French and German embassies have said their countries are opposed to Kenya’s push to have post-election violence cases at The Hague postponed for a year. They join the United Kingdom and US, who have also opposed the request.

Six Kenyans have been named by ICC chief prosecutor Luis Moreno Ocampo as bearing the greatest responsibility for the post-election violence. The suspects, who have come to be referred to as the Ocampo Six, include Deputy Prime Minister Uhuru Kenyatta, Head of the Public Service Francis Muthaura, suspended ministers William Ruto and Henry Kosgey, former Police Commissioner Hussein Ali and radio presenter Joshua Sang.

The Pre-Trial Chamber judges at the ICC have issued summonses to the six to appear before the court on April 7.

Kenya has launched a charm offensive targeting members of the UN Security Council, including the permanent members who hold veto power, to have the cases deferred.

Kenya’s bid

Of the eight missions of countries in the Security Council that spoke to the Sunday Nation, only Nigeria openly voiced support for Kenya’s bid. Other missions that spoke to the Kenyans were those of Bosnia and Herzegovina, Portugal, Brazil, Russia and the UK.

Diplomats from France, Germany and the United Kingdom based in Nairobi said the reasons being advanced in the latest shuttle diplomacy were weak. In separate interviews, the diplomats said they would not support the application to defer the cases.

While Germany is a non-permanent member, France and the UK are among the five permanent Security Council members who also wield veto power to overturn any majority vote. The others are the US, China and Russia.

Bosnia and Herzegovina issued a non-committal response.

“Bosnia and Herzegovina has till now no information if Kenya’s request will appear on the agenda of the UN Security Council,” said Mirsa Pasic, a public relations officer at the country’s Ministry of Foreign Affairs.

But Nigeria, a non-permanent member, said it would support Kenya’s application. Nigerian high commissioner Chijioke Wigwe said his government has no intention to deviate from the position adopted by the African Union to support the deferral of the case.

“Whatever we do, we must be in congruence with the rest of Africa. We fully stand by the position of Kenya,” he said. The request was handed to the President of the Security Council Li Baodong during a meeting with the Kenyan delegation led by Vice-President Kalonzo Musyoka at UN headquarters in New York early last week.

A statement from the Vice-Presidential Press Service (VPPS) said Mr Li informed the Kenyan delegation, which included Cabinet ministers Dr Sally Kosgei, Prof Hellen Sambili and Mr Njeru Githae, the request would be circulated to members of the Security Council for “consideration”.

Brazil and Portugal said their stand would be disclosed only at the Security Council.

“Only Kenyans themselves can express if they consider this request to be in their favour. The embassy keeps its eyes and ears open to inform on this matter. It has been approached by representatives of the civil society that want to express their views. I will listen to them as well,” said Brazilian ambassador Ana Maria Sampaio Fernandes.

The Sunday Nation, however, understands that Brazil has stated in other forums (not from the embassy in Nairobi) that Kenya’s request was a “difficult one”.

But the UK, Germany and France all said the Kenyan case did not pose any threat to international peace, security and stability to warrant a deferral.

Kenya has also failed to convince the US, even after Mr Musyoka met with Deputy Secretary of State James Steinberg in New York.

Article 16 of the Rome Statute, which the Musyoka team is citing, states that the Security Council can defer a case in exceptional circumstances where it strongly feels that its continuance would be a threat to international peace and security.

French ambassador Etienne de Poncins, however, said the legal arguments are not convincing.

Threat to security

“Article 16 of the ICC stipulates that the UNSC can request a deferral if, and only if, there is a threat to regional security, peace and stability. Are we in that situation? Clearly not. Does anyone imagine that requesting the Ocampo Six to go to The Hague could create unrest in Uganda or Tanzania? Furthermore, we firmly believe that holding to justice those responsible for violence is a necessary step to put an end to impunity, and prevent further outbursts of violence. This is why, together with our European partners, we have expressed our support for the ongoing ICC process,” Mr Poncins said.

“I do not see how we might support such a deferral. Article 16 lacks legal and substantive grounds. From our point of view it (shuttle diplomacy) is simply irrelevant.”

A state party to the Rome Statute can also apply directly to the ICC at The Hague for a deferral under Article 19, where it can prove that it has the capacity to carry out the trials under a local mechanism. But the local mechanism must meet the threshold of the ICC.

“Germany supports the ICC and backs the work of the court with regard to Kenya. We believe that it is necessary to investigate the post-election violence and bring perpetrators to justice,” German ambassador Margit Hellwig-Boette told the Sunday Nation.

She said the ICC started its investigations in the first place because Kenya requested it to do so.

Her position was supported by the British High Commission in Nairobi.

“We see no basis at this time for any proceedings in the UN Security Council under Article 16 in relation to the Kenya ICC case. A deferral under Article 16 can only be adopted in exceptional circumstances, by a resolution of the UN Security Council acting under Chapter VII of the Charter of the United Nations on the basis of a threat to international peace and security,” said John Bradshaw, the head of communications at the High Commission.

Mr Bradshaw said if Kenya wishes to set up a local mechanism of prosecuting the post-election violence cases, the government should consider applying to the ICC under Article 19.

“This would be less politically divisive than seeking UN Security Council engagement on this issue,” he said.

He was referring to the divisions within the grand coalition government over the campaigns to defer the cases. While President Kibaki seems determined to push for deferral, Prime Minister Raila Odinga wants the cases to proceed and has called for cooperation with ICC.

Mr Bradshaw said that another reason why the UK will not support Kenya’s application is the understanding that a majority of Kenyans support the ICC process.

“We must remember the victims of the post-election violence. They need justice and, for the sake of future peace, perpetrators should be held to account. In the current circumstances, we would welcome the formation of a local tribunal, but it should serve as a complimentary process to the ICC,” Mr Bradshaw said.

“The Kenyan position is not a unified one on that matter. President Kibaki and VP Musyoka have expressed their wishes for a deferral while Mr Odinga has expressed different sentiments. So we have listened to those who are in favour of a deferral and we also want to listen to those who are not for that position. France will also take into account NGOs and civil society opinions,” Mr Poncins said.

Russia, which has appeared ready to support Kenya’s application, said through their embassy in Nairobi that they were yet to make a final decision on the matter. Embassy spokesman Igor Lemansky said Moscow was yet to be approached by Kenya on the subject.

“Currently, we enjoy excellent relations between our two countries, and everyone has to remember that Russia is not a member of the Rome Statute,” said Mr Lemansky.

China was yet to respond by the time of going to press, but Mr Musyoka’s spokesperson Kaplich Barsito said the Kenyan delegation had held talks with China’s representative to the Security Council. China has previously voiced support for Kenya’s case.

The delegation also met representatives of the African states on the Security Council – South Africa, Nigeria and Gabon – who reportedly assured Kenya of their support.

In Nairobi, Mr Chijioke said: “We believe in African solutions to African problems. If Kenya can prove that it is capable to try the suspects, bearing in mind that it signed the Rome Statute voluntarily, Nigeria has no objection at all. Why should we oppose?”

But France criticised the slow pace of reforms in the Judiciary, which the ambassador said was a major drawback for Kenya to succeed with its application for deferral.

“We commend and fully support the adoption of the new Constitution. That’s clearly a step in the right direction. But we also must recognise that there is still a lot to be done in the implementation of the Constitution. Reform of Judiciary and vetting of judges is still only in its first stages. So I do not believe that today Kenya has the capacity to carry out successful prosecutions,” Mr Poncins said.