The UN Security Council Friday rejected a resolution to defer the International Criminal Court cases involving President Kenyatta and Deputy President William Ruto.
The vote in the 15-member council was seven countries in favour, none opposed and eight abstaining, including US, Britain and France.
In a sharp reaction to the outcome of the vote, Kenya’s Foreign Affairs Ministry accused the “important members” of the Security Council of “reckless abdication of global leadership” that it said, had “humiliated the continent and its leadership”.
The statement accused the US and UK “contempt for the African position” and “showing clear cowardice in the face of a critical African matter, and a lack of appreciation of peace and security issues they purport to advocate” by abstaining from voting.
At the same time, Kenya thanked China and Azerbaijan (in the chair) and Rwanda, Togo and Morocco — the three African members on the Security Council — “for their exemplary leadership”.
Rejection of the deferrals resolution means that the fate of President Kenyatta and Mr Ruto now lies with the Assembly of State parties to the Rome statutes, which form the ICC, to change the law to give immunity from prosecution to heads of state and government.
African nations will be pushing for the changes when the group meets in the Hague from November 28.
If successful, serving presidents, deputy or vice-presidents and prime ministers and their deputies will be immune from prosecution by the ICC.
If this fails, the AU has threatened to call an emergency session of its top decision making organ, the heads of state summit, to ask its 34 members to quit the ICC.
It is thought that would force judges, prosecutors, investigators and other staff from Africa working for the ICC to be withdrawn.
It would also mean that ICC staff currently enjoying diplomatic and other VIP status in those African nations would have to leave.
Security Council rules stipulate that a resolution requires nine affirmative votes in order to be approved.
The countries abstaining apparently acted on the view that votes in opposition would have intensified divisions on the issue of the Kenyan trials. Abstaining nations have, in effect, forced the trials to go forward.
Kenyan UN Ambassador Macharia Kamau was at the Security Council meeting as an invited observer.
So were delegates from Burundi, Ethiopia, Ghana, Mauritania, Mauritius, Namibia, Senegal and Togo.
African states currently represented on the council —Rwanda, Morocco and Togo — were also present.
Former US Assistant Secretary of State for African Affairs Ms Jendayi Frazer accused the Security Council of failing to take responsibility for international security.
“Eight abstentions is a sign of cowardice. Africa’s fate is in your own hands,” she tweeted.
Liz Evenson, a senior international justice counsel at Human Rights Watch said: “The Security Council did the right thing in hearing out the AU’s bid to suspend the ICC cases against President Kenyatta and Deputy President Ruto.
But, after hearing the facts, the Security Council saw there were no grounds here to justify delay.”
Kenya’s leadership wants the cases terminated, which “would rob the victims of horrific crimes of any hope for justice.
This should put an end to efforts to undermine the ICC’s cases and perpetuate decades of impunity which only fuelled cycles of violence in Kenya.”
This is how some countries voted.
United Kingdom (abstained):
Fully understand the desire to allow president and deputy president to fulfil their obligations, “But there is a right place and a wrong place to do that.” Security Council is not the right place, the Assembly of State Parties is.
Of eight situations before court, five were initiated by African states.
Going forward with trials does not constitute threat to international peace and security.
We have long standing relationship with Kenya.
“We are disappointed that this draft resolution has been unnecessarily put to a vote in a way that highlights disagreements.”
Vote was not necessary. We all knew what the outcome would be.
“This is useless, and is fraught with risks we would like to avoid” — artificial confrontation between African Union and Security Council.
“Kenya is a democratic and respected country and we understand role played by it in regional stability.”
United States (abstained)
Concerns of Kenya are best addressed by Assembly of State Parties.
Families of victims of electoral violence have already waited five years for justice.
Important to support accountability for those accused of crimes against humanity.
This is a new situation. ICC has never had trial of sitting head of state.
We are encouraged that Kenya is continuing to pursue its aim through Assembly of State Parties.
We abstained rather than vote no because of our respect for Kenya and African Union.
Proceedings against President Kenyatta and Deputy President Ruto is not in and of itself a threat to international peace and security.
ICC was established in order to eradicate impunity.
Security Council must not be seen as “helping the law of the jungle.”
Argentina is working closely with Kenya and other African countries regarding amendments to be proposed at Assembly of State Parties.
“We are of the South.” In keeping with memories of those victimized in Argentina, “the right of victims are not to be forgotten,” including victims of 2007 in Kenya.
Pakistan (in favour)
“ICC is a court of last resort. Principle of local jurisdiction needs to be respected... We hope dialogue between African Union and council can continue to find pragmatic solution.”
Russia (in favour):
“African countries presented most compelling arguments.”
Rwanda (in favour)
“Is this the right place to be today to discuss this issue? Yes, it is... Africa wants confrontation? Not at all.
Terrorism is the most important issue facing people of the world.
Kenyan leaders “are at the forefront of fight against international terrorism, and we are grateful.”
“Kenyatta and Ruto “should be respected, supported, empowered” not undermined at this time.
Rwanda expresses its deep disappointment at what transpired” in council today.
“Failure to adopt draft resolution supported by whole of African Union is a shame.”
“Let it be recorded today that Security Council failed Kenya and Africa.
This undermines tremendous difference made by leaders of Kenya in reconciliation of people of Kenya.
We believe this request was reasonable, legitimate.
“Some members of this council refused to negotiate on even a single paragraph of draft resolution.
“Article 16 allowing Security Council to grant deferral was not proposed by African state but by some of the Western powers at this table.
Seems to have been conceived by big powers to protect themselves.
Some countries that did not vote for this resolution have not cooperated with ICC.
“ICC loses face and credibility in the world the more it allows itself to be used by big powers of the world. It can’t continue like this.”
“One positive outcome today is reaffirmation of African unity and solidarity.
Of the 10 non-permanent members, five are elected by the General Assembly each year to serve two-year terms.
“The current non-permanent members are Argentina, Australia, Azerbaijan, Guatemala, Luxembourg, Morocco, Pakistan, Rwanda, South Korea and Togo.
The AU and Kenya formally wrote to the Security Council last month seeking the suspension of the cases on the grounds that they are undermining the Kenyan leaders’ efforts to fight terrorism.
The continental body has already resolved that President Kenyatta ought not to attend his trial.
This was initially expected to start on November 12 but was pushed to February next year on the request of Chief Prosecutor Fatou Bensouda for more time.
If he gets the chance to participate at the session listed on the Security Council’s plenary session in New York listed on the order paper as ‘Peace and Security in Africa,’ Kenya’s ambassador to the UN Mr Kamau, would be the man on the spot.