How Kenya was outwitted at ICC forum

Kenya was outfoxed by a determined delegation of Europeans as the 13th session of the Assembly of State Parties (ASP) drew to a close on Wednesday in New York.

The government had since March raised expectations of fireworks ahead of the 13th meeting of International Criminal Court member-states when it proposed far-reaching amendments to the Rome Statute.

In addition, the country found itself isolated by its main backers, the African Union, who failed to speak in unison. In fact, Guinea, the Democratic Republic of Congo (DRC) and Central African Republic (CAR) openly endorsed the ICC.

There were “many positive expressions of support for the ICC from African states. The Senegalese minister of justice was elected the new ASP president at the opening of the session and has been presiding over the meeting.

There were statements from the CAR president and ministers from Guinea and DRC,” the senior international justice counsel at Human Rights Watch, Ms Elizabeth Evenson, who attended the ASP, told the Sunday Nation.

MIXED FEELINGS
The AU voice, if at all it was heard, was further drowned by the election of Senegalese justice minister Sidiki Kaba as the next ASP president, taking over from Estonian diplomat Tina Intelmann.

“We have very mixed feelings” about the outcome of the December 8 to 17 ASP, Ambassador Macharia Kamau, the country’s Permanent Representative to the United Nations, told the Sunday Nation.

“On the one hand, we have been able to get our issues on the agenda after encountering a lot of resistance in the preparatory process. We managed to get our statements heard on certain issues, including cooperation, prosecutorial behaviour and politicisation of the court,” he said.

“The downside,” Ambassador Kamau added, “is that the Europeans refused to engage in a discussion of these issues. There was no vigorous debate.”

Kenya’s performance at the 13th session could also be due to a comparably large but weak government delegation that travelled to New York for the meeting. They were not only confronted by State Parties but also had to make do with a group of well-organised civil society organisations.

THE DELEGATION TEAM
The official government delegation had more than 50 officials, led by Interior Principal Secretary Monica Juma, Mr Kamau, Solicitor-General Njee Muturi, Director of Public Prosecutions Keriako Tobiko, Ambassador to Netherlands Rose Makena Muchiri, and Permanent Representative to the United Nations, Nairobi, Martin Kimani.

According to the list held by the ASP, the delegation also had the Director of Witness Protection Agency, Alice Ondieki, Mrs Dorcas Oduor of the Office of Director of Public Prosecutions, legal adviser in the Executive Office of the President Jasper Mbiuki, and Legal Adviser, Office of Deputy President, Korir Sing’oei.

There were also a number of MPs drawn from both sides of Parliament in the delegation, as well as politician Ronnie Osumba, activist Ngunjiri Wambugu and a group of elders led by John Seii.

At the 12th session of ASP in The Hague in 2013 the government was led by Foreign Secretary Amina Mohammed and Attorney-General Githu Muigai.

“This delegation may have looked lighter at the top but this year’s team was bigger than that of 2013,” said Njonjo Mue, the programme adviser for Kenyans for Peace with Truth and Justice (KPTJ).

PROPOSED AMENDMENTS
Kenya was seeking to have the ASP amend Articles 27, 63, 70 and 112 of the Rome Statute.

By proposing amendments to Article 27, Kenya wanted the Rome Statute to grant immunity to sitting Heads of State and senior government officials while, through Article 63, the government wanted to exempt accused persons from being physically present in The Hague, but could attend through video technology.

Changes to Article 70 would have seen the ICC have jurisdiction over offences against the administration of justice by anyone, including officers of the court, while Article 112 sought to operationalise the Independent Oversight Mechanism “to carry out inspection, evaluation and investigations of all the organs of the court.”

Kenya also wanted to have a supplementary item on the agenda of the ASP to discuss the conduct of the Office of the Prosecutor.

“Kenya did not succeed in getting a “special” agenda item and has instead made do with statements during the General Debate and a discussion on cooperation.

Kenya called for further discussion of the definition of “cooperation” — but, of course, the meaning of cooperation is determined in each case ultimately by the judges.

There has been little discussion on Head of State immunity, although some states mentioned this in their General Debate statement,” Ms Evenson said.

PROTRACTED PROCESS

According to Mr Mue, failure of the government to get through its proposals calls into question the need for such a large delegation.

“In terms of value for money, Kenyans may want to get answers on why the government spent a lot of public money on what the President (Uhuru Kenyatta) had himself said was a personal challenge,” Mr Mue said.

“At the ASP there is a very high threshold required to amend the Rome Statute and many states may not be comfortable in supporting amendments when there is a feeling that they only suit certain people,” he said.

The proposal to discuss the conduct of the office of the prosecutor also did not feature because, according to Mr Mue, it was like losing a case at the High Court and rushing to Parliament to appeal.   

The assembly did agree, however, to consider Kenya’s proposed amendments to the ICC treaty, known as the Rome Statute, at an “inter-sessional” meeting due to take place next month, Mr Kamau noted.

The government’s agenda to have the proposed amendments debated substantively was further hampered by an unexpectedly protracted process of electing a set of six new judges.

BLISTERING ATTACK
Negotiations on the election of the judges resulted in disruption of the adopted agenda for the assembly’s meeting at UN headquarters in New York.

But that did not prevent Ambassador Kamau from delivering a blistering attack on the office of ICC Chief Prosecutor Fatou Bensouda.

In a December 12 statement to the Assembly, the Kenyan envoy accused the prosecutor of presenting “a grotesquely false narrative” concerning the cases against President Kenyatta and his deputy William Ruto.

The narrative advanced by Ms Bensouda “has nothing to do with justice, the rule of law or peace and security,” Ambassador Kamau stated.

The prosecutor “insists that somehow the prosecution of the defendants, irrespective of due process and the exercise of their rights, will miraculously and permanently address the injury perpetrated on the victims” of the post-election violence seven years ago, he declared.

The prosecutor’s approach to the Kenyan cases has been “antithetical to our own future and peace and security in our country,” the ambassador continued.

“Could it be that the Office of the Prosecutor is more concerned with placating its funders and its financiers than in pursuing justice for the victims?” he posed.

ONGOING CASES
The charges against President Kenyatta have already been withdrawn by the prosecutor but the trial of Mr Ruto and former radio broadcaster Joshua Sang for crimes against humanity are on-going.

Mr Kamau also cited “allegations of the commission of perjury by witnesses with the knowledge of, and or connivance of, court officials, investigators and/or intermediaries.”

It has been claimed that “witnesses were promised financial or material gain, including relocation to third countries, should they offer evidence that is favourable to the prosecution,” he said.

A starkly different version of the circumstances surrounding the Kenyatta case was presented by a Kenyan non-governmental organisation during the assembly meeting.

“It is public information that many of the witnesses died in very unclear circumstances, others disappeared and cannot be traced, while others were bribed, threatened and intimidated to cease cooperating with the office of the prosecutor,” KPTJ said in a December 10 statement.

“The prosecutor’s efforts to collect additional evidence made through requests to the government for records held by the government were only partly complied with, making it impossible to build a case with partial information.”

The civil-society group added that the Kenyan government has shown “dismal effort in holding accountable those responsible for crimes committed during the post-election violence, whether in Kenyan courts or at the ICC.”