State-NGOs rivalry plays out at New York ICC meeting

The Assembly of State Parties in New York has turned into a grudge match between the Kenyan Government and civil society organisations.

During last year’s ASP at The Hague, Netherlands, the civil society outflanked the government, which had lobbied African diplomats to push through amendments to the Rome Statute that would release President Uhuru Kenyatta and his Deputy William Ruto from either facing charges at the International Criminal Court – or allowing them not to appear in person.

Strong words were traded between Attorney-General Githu Muigai and transitional justice expert Njonjo Mue, in one forum, forcing the official delegation to summon help from Kenyan MPs and other politicians.

Since then, it has been no secret that there is no love lost between the government and the civil society organisations, who insist that they speak for the 1,133 victims killed during the post-2007 election violence, rape victims and the 600,000 displaced.

This year, Kenyans for Peace with Truth and Justice (KPTJ) has been circulating a flyer entitled “Kenya’s 7-Step Formula for Impunity”, which has incensed the official government team as well as representatives from councils of elders which arrived together with activist Ngunjiri Wambugu, politician Ronald Osumba and a posse of legal consultants to shore up claims that the government had no victims problem.

EXCLUDE CIVIL SOCIETIES

A Twitter war was simmering as the sessions wound down to the weekend, with the pro-government activists expected to stage a side event tomorrow to respond to what KPTJ and African civil society organisations have been circulating.

An October 16 diplomatic communication from the Kenya Mission to the UN does not refer to the civil society in charitable terms – calling them “a cacophony of civil society organisations whose constituency and mandate is suspect and whose agenda has more to do with purveying the displeasure of their funders than promoting the principles of the Rome Statute or human rights”.

“Kenya does not want civil society to participate in ASP meetings either at The Hague or in New York, or even to talk,” observes Mr Stephen A. Lamony, Senior Adviser on the UN and Africa at the Coalition for the International Criminal Court (CICC).

Anger at the influence of non-governmental organisations drove a senior counsellor at the Kenya Mission in New York to ask that civil society organisations be excluded from the ASP, arguing that, as observers, they should keep mum, not organise or be heard.

It is a position Mr Lamony scoffs at, saying the inclusion of civil society organisations in the Rome Statute is not accidental since they were instrumental in its formulation. “They participate in meetings as a right,” he added.

DIFFICULT RELATIONS

His sentiments were endorsed in the new ASP’s President Sidiki Kaba’s maiden speech: “The investigation reports of civil society organisations provide an invaluable source of information in conflict zones and must be protected.”

Still, the Kenya Government is smarting from the wounds inflicted on its diplomacy last year by a better-organised civil society that lobbied African states at the ASP. In response, Kenya is waging an all-out diplomatic offensive on NGOs.

This year, although the CICC invited 450 civil society participants, the UN head of security Paul Jankowsky only made provision for 150 badges. When contacted, Lt Jankowsky directed media enquiries to the UN Spokesman’s Office.

Mr Lamony traces the difficult relations between the Kenya Mission at the UN and civil society back to a letter sent out in June this year seeking to halt amendments to the Rome Statute that would exempt heads of state or other high government officials from criminal responsibility while they are in office.

NO IMMUNITY

The CICC letter reiterated that one of the achievements of the ICC’s founders and of the Rome Statute was to enshrine the fundamental principle that accountability for the worst crimes under international law applies to all persons.

The founding governments were also adamant in their conviction that the Rome Statute could not allow for reservations and that there could be no immunity for any individual, in any circumstances, regardless of position or office. 

“In considering the Article 27 amendment proposal,” wrote CICC boss William Pace, “The Assembly of State Parties is confronted with one of its most serious political challenges to date.”

ADDRESS CONCERNS
The letter continued: “While it is important that legitimate concerns of AU resolutions and the Kenya situation are addressed, the Rome Statute system and any concerns must also be addressed by considering the views and interests of all 122 State Parties, and concessions must not be made which would impact of the global fight against impunity as embodied by the ICC.”

Kenya’s diplomats have been seething about civil society leaders being allowed to hold a media conference at the UN headquarters where they called world attention to the difficult cooperation situation with the ICC and suggested that Kenya be censured at the ASP.

During a November 21 Working Group on Amendments meeting, Kenya explained that its proposal to amend Article 27 – which does not recognise official status of accused persons — is not an attempt to rewrite the Rome Statute.

“It is historically clear now that prosecution of a sitting Head of State (and sometimes also former Head of State) by the ICC is very difficult,” said a Kenyan diplomat, a fortnight before the case against President Kenyatta was withdrawn.

PRAGMATIC PROPOSAL

The official cannot be named because ASP Working Group on Amendments operates under the Chatham House rules where what one says cannot be publicly attributed to them.

“This is a pragmatic proposal since these difficulties are evident and not only for the Kenyan case,” he added, according to minutes of the meeting.

“We do not want to secure impunity. We are trying just to add a comma not a full stop — just for a four-to-five-year mandate of a sitting Head of State or maximum for the second mandate.”

The new ASP president made a surprise appearance at a civil society meeting with African governments to discuss cooperation with the ICC and spoke in glowing terms about NGOs.