Uhuru’s dilemma over ICC summons

President Uhuru Kenyatta faces his biggest dilemma yet after the International Criminal Court (ICC) ordered him to appear at The Hague-based court in person for a status conference.

On Friday, while postponing indefinitely the October 7 trial date, the court directed that the President appears before it on October 8 in relation to charges linked to the 2007/2008 post-election violence.

“Given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the status conference on October 8, 2014,” the order by Judges Kuniko Ozaki (presiding judge), Robert Fremr and Geoffrey Henderson said.

The order leaves President Kenyatta with two difficult options: he can choose to obey it and appear before the judges on October 8 as directed — an option the Sunday Nation understands his lawyers seem to favour as they believe the case is on its last legs — or ignore the summons.

If he chooses to appear, he will have to momentarily forget the trappings of power and face the humiliation of being in the dock as an accused person.

Attending the session would also mean the President would be disregarding the October 12, 2013 resolutions of the extraordinary session of the African Union (AU), which advised him or any serving head of state not to honour the summons to appear before the court.

The extraordinary AU summit in Addis Ababa, Ethiopia, had declared: “To safeguard the constitutional order, stability and, integrity of member states, no charges shall be commenced or continued before any International Court or Tribunal against any serving AU head of state or government or anybody acting or entitled to act in such capacity during their term of office”.

The summit had also advised President Kenyatta not appear before the ICC until such a time that the United Nations Security Council and the ICC adequately address the concerns raised by its African member states.

Incidentally, the extraordinary summit had been held at the request of Kenya which was seeking the continent’s backing to disregard the ICC over claims that it was only targeting African leaders. The Jubilee administration has been lobbying for a tough diplomatic stance.

If the President chooses not to honour the summons, the ICC will lift his conditional excusal from attending court and issue an arrest warrant.

“At this time, the Rome Statute has not been reviewed to exempt heads of state. The fact that the AU has spoken through a resolution does not oust the Rome Statute,” Nairobi lawyer Anthony Oluoch told the Sunday Nation on Saturday.

HIERARCHY OF LAWS

He added that the “hierarchy of laws” meant that where there was a conflict between an AU resolution and the UN-sanctioned international law, the AU argument would be subordinate. Mr Oluoch added that President Kenyatta risked facing international censure if he defied the court without a valid reason.

“He will become a pariah head of state like President Omar al Bashir (of Sudan) whose international travels are limited for fear of arrest and being rendered to the ICC detention for jumping bail,” Mr Oluoch explained.

Lawyer Kibe Mungai who is representing Walter Baraza — a journalist fighting extradition to ICC to face charges of witness tampering — said the entire scheme is political.

“The President’s case has collapsed but the ICC is looking for a fight. Ordinarily, I would be reluctant to advise him to go but given the prosecution has said it lacks evidence against him, he should go and confront the court and ask why they are holding him to something that is not there,” said Mr Mungai.

“This is pure international politics and he should seize the opportunity to show the world that he too can play international politics,” he added.

The Hague court had issued summons instead of arrest warrants for the Kenyan post-election violence suspects — President Kenyatta, his deputy William Ruto, and Mr Joshua Sang. Other Kenyans, whose charges were eventually dropped, are Mr Henry Kosgey, Mr Francis Muthaura, and former commissioner of police Hussein Ali.

The conditional excusal from being detained was on the basis that they adhered to certain conditions, including cooperating with the court and honouring summons. They were also threatened with arrest warrants if they were found to have interfered with witnesses and victims of the post-election violence.

Following the 2013 General Election, the court also excused President Kenyatta’s and Mr Ruto’s cases from running concurrently. This was to allow either of them to be in the country to carry out their state functions.

SHOULD HONOUR SUMMONS

According to Mr Oluoch, the President is sued in his personal capacity and should not drag the country to the case.

“I would advise him to honour the summons and appear before the court in person because the interests of the country far outweigh his absence for a day or two. It also outweighs the humiliation that some may see when the President of a country takes his place in the dock as an accused,” he said.
The other option President Kenyatta’s lawyers could be exploring is to apply that he attends through video link.

The option was introduced with the insistence of the AU at the 2013 Assembly of State Parties in The Hague. The ICC has been reluctant to allow it, particularly for the accused. The use of video link from an undisclosed location in Nairobi was recently used by witnesses 604 and 516 in the case against Mr Ruto and Mr Sang.

On Saturday, Gatundu South MP Moses Kuria said the ICC was turning into scripted drama. “It’s farcical that the prosecution says that it has no evidence but the court still wants the President to leave his state duties to go to The Hague,” he said.

Mr Kuria, however, said the final decision on whether or not to honour the summons is President Kenyatta’s. “The President is competent enough to make his own decision.”

NEO-COLONIALISM

Meanwhile, the summons could further strain the relations between the AU and the ICC. AU leaders have a number of times condemned the court for discrimination and taking advantage of Africa’s weak global position to frustrate the continent’s leaders.

The continent’s leaders have been toying with the idea of establishing an African court to handle international crimes within the continent and “break itself from the yoke of neo-colonialism” of the West.

In case he honours the summons, it will be the third occasion he has been in the ICC courtroom while facing crimes against humanity charges. In the earlier instances, he was summoned during the initial appearance hearing on April 8, 2011, and later for the confirmation of charges hearing from September 21 to October 5, 2011.