Victims fight Uhuru, Ruto case deferral bid

Victims of the post-election violence in the case against President Kenyatta have appealed to the UN Security Council to reject Kenya’s and African Union’s bid to defer trial.

Through their legal representative Fergal Gaynor, the 20,000 victims set out 11 grounds why the deferral request should be rejected.

Diplomatic engagements between Kenya and the AU on the one hand and the UN Security Council members on the other are currently underway in New York to have the cases facing the President and his deputy William Ruto deferred for at least a year.

The request is on the basis that Kenya’s role in the fight against terrorism in the region as well as the strides the country has made in constitutional and institutional reforms since the 2007 election chaos would be hampered if the Security Council fails to intervene.

However, the request seems to be faltering with some of the veto-wielding members of the council— the US, Britain and France— appearing to oppose. Voting in the Security Council requires that at least nine members support a resolution, including the concurrence of the five veto-wielding members. Other veto-holding council members are China and Russia.

According to the victims, the deferral bid should be rejected since it would undermine the core purpose of the UN of acting to prevent threat to international peace.

“To adopt a Chapter VII (of AU) resolution each year for the next five or ten years in order to permit two men to avoid trial would run counter to the exceptional nature of Chapter VII action. It is also unwise for the Security Council to commit itself to a course of action which might require it to declare the existence of a threat to international peace every year for the next decade,” the victims’ letter to the President of the Security Council Liu Jieyi reads in part.

Secondly, the victims argue that adopting a resolution to defer the cases would be counter-productive to the fight against impunity.

“To protect the powerful and delay or deny justice to the powerless should not become the role of the Security Council ,” they say.

In the November 3 letter, Mr Gaynor further states that a deferral would deny justice to his clients who have waited for more than five years.

“A delay of five or ten more years means that many more victims, including rape victims who contracted HIV from their rapists, will die before they see justice,” Mr Gaynor says in the letter.

The victims also fear that deferral would open a window for more witnesses to withdraw their testimonies and in effect collapse the case against the two.

They also dismiss Kenya’s and AU’s position that there are reforms in key criminal justice institutions, saying Director of Public Prosecution Keriako Tobiko has so far not shown any intention to prosecute PEV cases.

Mr Gaynor also holds that Mr Kenyatta and Mr Ruto assumed office while aware of their obligations to attend their trials.