Kenya pulls out all stops to have President’s case deferred

As the date for President Uhuru Kenyatta’s Hague trial draws closer, it is becoming increasingly doubtful if he will honour his appointment with the court.

The strongest indication of this possibility came during a media interview with Foreign Secretary Amina Mohammed, who said there is no precedent anywhere in the world for a sitting president to be put on trial and that those that seek to try Mr Kenyatta must therefore wait until he completes his term.

In addition, Parliament Majority Leader Adan Duale came out to say that Kenya had no plans to hand over to the ICC Eldoret journalist Walter Barasa, against whom the court has issued an arrest warrant. He said that no Kenyan will ever be tried abroad again, and that plans were under way to transfer back to the country the ongoing case against Deputy President William Ruto.

Also, a highly significant African Union summit, convened at the behest of Kenya and Mauritania, which ended in Addis Ababa yesterday, resolved to support Kenya’s application to the UN Security Council for the deferral of its cases before the ICC for a year.

While similar resolutions by the AU have been made before, it is the surrounding diplomatic activity, including a visit by the UN Security Council to Addis Ababa, which gives this resolution unprecedented importance.

Barring any eventuality, the trial against Mr Ruto will proceed to its logical conclusion. If President Kenyatta’s trial is deferred or otherwise fails to take off due to non-cooperation, his deputy will remain on trial alone, unless he also ceases further cooperation. In those circumstances, the bond between them, created by the common threat of ICC charges, will come under some strain, and this may have implications for national politics.

VIDEO LINK

President Kenyatta, whose trial is scheduled to start on November 12, has applied to be excused from attending the trial in The Hague in person and to be allowed to participate through a video link.

A decision on that application is pending before the court and must be made before the start of the trial. Mr Ruto also applied to be excused from attendance of the bulk of his trial and, while the trial chamber allowed the application, this decision was suspended on appeal.

The hearing of the appeal itself is still pending. Five African states, including Kenya, Rwanda, Eritrea, Uganda and Burundi, have applied to participate in this appeal.

As expected, the agenda for the AU summit revolved around AU/ICC relations, and strong speeches condemning the court emerged during the meeting. It was also expected that, at the urging of Kenya, mass withdrawal of African member states from the ICC would materialise, with affected countries using the refusal by the ICC to allow Mr Ruto to skip most of the trial as the ostensible reason for pulling out.

During her briefing last week, Ms Mohammed made it clear that withdrawal from the ICC would not be on the agenda of the meeting and that Kenya would be the last country to seek to influence others to pull out of ICC.

The Rome Statute confers on the UN Security Council the power to defer a case before the ICC for one year, if the prosecution of the case will jeopardise regional peace and security. A deferral once granted can be renewed.

Kenya first applied to the Security Council for a deferral of its cases in January 2011. Just like now, the AU endorsed Kenya’s application during its 16th summit held in Addis Ababa and has reiterated its support during subsequent meetings. At the time, Kenya argued that the prosecution of the cases would jeopardise national attempts to address the fallout of the post-election violence. However, the Security Council has so far failed to approve the request, or to meet with the AU leadership until last week.

So what is different now from 2011? Unlike in 2011, the government has been involved in diplomacy thought to be geared towards supporting a favourable decision by the Security Council. All the 15 member states to the Security Council visited Addis Ababa at the beginning of last week and held consultations with the AU Commission president Nkosazana Zuma.

Following the meeting, Zuma wrote a letter to the Security Council, making another deferral request. The fact that the Security Council went to Addis Ababa, rather than the other way round, is significant. Also, whereas Kenya’s previous application to the Security Council was not accompanied by diplomatic activity, nothing has been left to chance this time round.

Ms Zuma’s letter to the Security Council asserts that “the situation in Kenya is very complex” and that “there are at play important dynamics and tensions of politics, peace, justice, and the rule of law and a very acute sense of ethnicity that cannot be wished away or swept under the carpet”.

She then argues that the “suggestion that the Kenyan situation does not fall under Chapter VII of the UN Charter, if indeed that is necessary at all, misses the point about the need to pursue justice in a manner that does not jeopardise efforts aimed at promoting lasting peace, national healing and reconciliation”.

STRATEGIC ADVANTAGE

Also the visible anger by African states, both during the meetings in Addis Ababa, and also during the last UN Security Council, are guaranteed to make the Security Council notice the application. Further, it appears that Kenya has extricated its fate from that of the Sudan, which is a strategic advantage.

The Sudan was the first country to receive the support of the AU in relation to its request for a deferral of the prosecution of its President, Omar el-Bashir, by the ICC. The argument was that Bashir was the guarantor of the peace agreement with South Sudan, a referendum for whose independence was then pending.

The AU argued that to put Bashir on trial might jeopardise the peace agreement.

Kenya has always leveraged its position against the ICC with that of the Sudan. While this strengthened the AU position for a deferral, it became more difficult for the Security Council to defer two, rather than one, case.

It remains to be seen if the Security Council will allow the application for a deferral or if it will reject it like before. Also, if the deferral application is granted, it remains unclear if this will affect the ongoing Ruto case.