New hurdle for Uhuru in ICC case

President Uhuru Kenyatta is facing an uphill task in his quest to delay his trial at The Hague after it emerged that UN Secretary-General Ban K-moon could reject a plea by the African Union for the ICC to defer the Kenya cases.

Despite this setback, sources have told the Nation that the UN Security Council is likely to discuss the proposal for a one-year deferral of Mr Kenyatta’s trial. The last time Kenya put in such a request, it was not discussed.

But sources said the 15-member council will consider the AU and Kenya’s request under a section of the ICC treaty which allows for a deferral on the basis of a perceived threat to international peace and security.

Kenya’s allies in the Security Council are expected to argue that the Westgate terror attack constitutes a threat to international peace and security.

They will further argue that Mr Kenyatta and Mr Ruto must be able to focus on countering that threat without having simultaneously to answer charges at a court in Europe.

The United States, the most powerful member of the Security Council, is yet to state its view on the AU’s call for a deferral and for African heads of states to be made immune from prosecutions while they are in office. The US has twice opposed moves to defer or terminate the cases against Mr Kenyatta and Mr Ruto in the past.

A UN spokesman has said Mr Ban had asked the nations which signed the Rome Statute — which created the ICC — to “continue honouring their obligations”.

Wednesday’s remarks by Mr Martin Nesirky suggest that Mr Ban is unlikely to respond favourably to the African Union’s request that the Kenya cases be deferred. But he also said that Mr Ban has been studying the AU’s position “very closely” and has expressed optimism that African countries will continue to engage with the ICC “in a constructive manner”.

And in Bucharest, Romania, ICC president Sang-Hyun Song yesterday said the court has never targeted any African country and described such criticism as “regrettable”.

“We never chased any African country, we didn’t do anything in this respect, they brought their own situation to us,” said Mr Sang-Hyun, a Korean judge.

His comments were the ICC’s strongest response yet to accusations by made by Mr Kenyatta and the AU of “bias and race-hunting at the ICC”.

“The Kenyan Parliament voted down twice the idea that was recommended by the international community that they should introduce a special criminal tribunal of their own which will handle these particular tragedies,” he told a conference organised by the Romanian government. “Since they voted down twice, there was no option but the ICC prosecutor’s intervention.”

And in The Hague, ICC spokesperson Fadi El Abdalla yesterday said the court will proceed with Mr Kenyatta’s despite spirited efforts by the African Union to have them deferred or stopped.

Mr El Abdalla said there were no pending requests before any of its judges seeking to defer or halt the case facing Mr Kenyatta, hence its decision to proceed with the trial starting November 12.

“The court is a judicial institution and any request to postpone the beginning of the trial of Mr Kenyatta or suspend ongoing proceedings have to be submitted to the relevant chambers in accordance with the applicable procedural rules. Currently, there are no pending requests for postponement of the proceedings in the Kenyatta case,” he told the latest edition of the “Ask The Court” session during which he responds to queries touching on the court.

Mr Abdalla said that it was imperative that Mr Kenyatta attend his trial in person in accordance with Article 63 of the Rome Statute which requires that all accused persons be present in court.

He, however, confirmed that Mr Kenyatta’s defence had submitted a request to be excused from being physically present during the trial and noted that the judges were considering the request and will take an impartial decision on the request.

“Mr Kenyatta has also submitted a motion to stay the proceedings which the judges are also considering,” he said.

On Kenya’s decision to push for the deferral of Mr Kenyatta’s trial, Mr Abdalla maintained that it was upto the UN Security Council to consider such a request and adopt or reject it.

“Any request for deferral submitted to the Security Council will be discussed in that forum which is separate from the ICC. The ICC is an independent judicial institution that does not advise the UN Security Council on whether to adopt or reject a resolution to defer a case,” he said.

And in Nairobi, a case seeking to block Mr Kenyatta from attending the ICC trial suffered a setback after Lady Justice Mumbi Ngugi rejected it. (VIDEO: Court dismisses case on Uhuru ICC trial)

The judge dismissed a petition by the National Conservative Forum, ruling that the lobby group had not established any constitutional crisis would arise should the President travel to The Hague on November 12 when the case against him opens.

“It is regrettable that the Kenyan situation is peculiar given that the President and his deputy are facing charges at the ICC,” she said. “However, the ICC process is already on-going and the petitioner’s case is only a hypothesis of what might happen if the two are out of the country.”

Additional reporting by Peter Leftie, Paul Ogemba and AFP