The mystery on a letter petitioning the United Nations to terminate the ICC charges facing President Uhuru Kenyatta and Deputy President William Ruto threatens to be the biggest test to face their Jubilee government.
The chief government legal adviser could neither deny nor confirm if the President was aware of the letter.
Said Attorney-General Githu Muigai: “We were not aware the letter had been written… we have been pursuing the case with the court and worked closely with the president of the court, the registrar and the prosecutor.”
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.
Prof Muigai said the government wanted the matter settled expeditiously by the court, but added that ambassadors had an independent mandate.
“The government applied to co-operate with the court and we were granted. In pursuit of this, a high powered government delegation will be at The Hague next Wednesday to meet court officials,” he disclosed.
On Wednesday, a letter sent by Mr Kamau to the Security Council became subject of debate with Rwanda’s amabassador to the UN accusing the International Criminal Court of bias in execution of its mandate.
The strongly worded 13-page letter was circulated among members of the United Nations Security Council ahead of the visit by the ICC prosecutor Fatou Bensouda, who was before the Council to brief it on a Libyan case.
“We thus ask the UN Security Council to take the much-needed political stance that Kenya must be given the time and opportunity to apply the principle of pre-eminence of national courts. The security council has a duty and obligation to assist Kenya overcome this serious politically sensitive and potentially destabilising and disabling situation,” the letter said. It then concluded that the Kenyan delegation was not asking for a deferral, but the immediate termination of the case at The Hague.
Saturday Nation has learnt that Ms Bensouda did not meet the Security Council to talk about the Kenyan cases but was briefing the Council on the Libyan case when an impromptu exchange on Kenya came up from Rwanda’s intervention.
Rwandan envoy Eugene-Richard Gasana had remarked on Wednesday’s Council meeting that the letter made “a compelling case against the methods of work of the office of the prosecutor on the Kenyan cases.”
He accused the ICC of being “selective in its methods of investigating and prosecuting perpetrators of serious international crimes as it has failed to prosecute similar crimes committed in other parts of the world.”
Sources told Saturday Nation that Mr Khan on Thursday called Mr Ruto and advised him that the petition could be injurious to their cases.
“It was then that the Deputy President okayed him to send out the denouncement distancing himself from the letter,” said an MP, a close ally of Mr Ruto.
Mr Khan said: “I have spoken to my client, Mr William Ruto, and I can confirm and he has made it 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 that Mr Ruto believes in the rule of law and in Kenya observing its international obligations.
A senior aide said that the Ruto defence believes that a direct attack on the integrity of the court was counterproductive as the case could be won in court.
Most MPs however did not want to be seen by their bosses as “sowing seeds of discord in the nascent union” as one senator put it.
The letter could be part of a strategy adopted long before Mr Kenyatta became president that the UN Security Council should be persuaded that if the ICC pressed on with charges related to the 2007 poll, it would cause violence ahead of the election.
“After the election came and went without violence, the conversation has now changed to that since the Kenyan people, who are the supposed victims of the alleged atrocities voted them, who are their accusers? It is also being said that if the cases continue, it would injure the fragile peace which the two leaders have cultivated,” said an MP who requested not to be named.
Former chairman of the Defence and Foreign Relations Committee Aden Keynan said it was unlikely that such a sensitive letter with foreign relations and national security implications could be written without the express sanctioning in government.
“Our foreign missions abroad promote, project and protect the interests of Kenya. The letter is telling on how urgently our foreign policy should be reformed,” said Mr Keynan.
Prof David Kikaya, a diplomacy expert said it was not possible for an ambassador to write such a letter without the President’s authority.
However, Oljorok MP John Waiganjo, who is a close ally of President Kenyatta, said it was a case of an overzealous civil servant and “simply because the President had not denounced the letter does not mean he endorsed it.
“The two principals have been working very well and have not been commenting directly on the ICC,” said Mr Waiganjo, a lawyer.
At the UN, Ms Bensouda told the Security Council that Kenya had made “unfounded and incorrect” claims in urging the termination of the cases.
She described Kenya’s appeal to the Security Council as “a backdoor attempt to politicise the judicial processes.
While in the UK earlier this week, President Kenyatta met the United Nations Deputy Secretary General Jan Eliasson in London.
Mr Eliasson told the media in New York that he “had a very good meeting with President Kenyatta in London”.
He added: “As long as Mr Kenyatta “cooperates fully” with the International Criminal Court, “there are no problems for us to deal with Kenya’s president”.
He, however, said Kenya’s request to the UN Security Council that it terminates the ICC cases “was not raised” in the bilateral UN-Kenya talks that took place in London on the sidelines of an international conference on Somalia.
Mr Eliasson described Mr Kenyatta as “a very important actor, of course, in the African scene” and a leader who is “absolutely crucial for developments in Somalia”.