After five hours of debate at the Assembly of State Parties in The Hague last week, the heated plenary session at which 36 nations spoke ended without a conclusion.
The session was the ASP’s response to the African Union’s request for a special segment to discuss the indictment of sitting heads of state and government and its consequences on peace, stability and reconciliation.
In reality, it was no more than a smokescreen to discuss the appropriateness of Kenya’s President Uhuru Kenyatta - who was indicted for crimes against humanity two years before he took office – attending trial.
It was not the outcome the high-powered Kenya delegation had hoped for.
Foreign Secretary Amina Mohammed had promised fireworks and assured the world that Kenya would easily marshal 81 votes – from the requisite two-thirds of ASP members – to pass amendments that would grant the Kenyan president immunity from prosecution while in office.
By Saturday, Attorney General Githu Muigai – who also attended the meeting alongside a posse of officials from his office as well as Director of Public Prosecution Keriako Tobiko and Ambassador Macharia Kamau -- was creating distance from the desire for immunity from prosecution, saying it was never Kenya’s intention in the first place.
Just what went wrong?
It started with the debate. Once word got out that Mr Ruto -who was similarly charged with crimes against humanity in a separate case in April 2011 – would lead the official AU delegation to the Assembly of State Parties, the ICC Chief Prosecutor, Fatou Bensouda, filed an objection in court seeking to lift his excusal from attending court.
It turned out that Mr Ruto would not be attending the ASP after all. Mr Ruto has been attending trial at the ICC since September 10, 2012.
Minutes before the plenary session began, special assistant to the ICC President Philip Ambach explained to Kenyan reporters that amending the Rome Statute by article or rule was a herculean task.
The proposal had to be notified to the UN Secretary General three months before the meeting, endorsed by two-thirds (81 states) of all state parties in plenary, and ratified by seven-eighths (107) state parties.
At the conclusion of the plenary session, Prof Muigai effusively thanked those who had worked behind the scenes to put him on the speaking panel in the face of great resistance.
Therein lay the answer to the puzzle of Kenya’s misfortunes – the panel had consisted of the AG as well Commission for the African Union’s legal counsel, Djenna Diarra, Prof Cherriff Bassiouni and Prof Charles Jalloh. Prince Zeid was in the chair.
Prof Bassiouni is known as the godfather of international criminal justice, having established the International Criminal Tribunal for Yugoslavia and worked as a prosecutor in it. His feelings about the crisis of trying sitting heads of state when he had prosecuted Milosevic could only be guessed at.
His contribution tended to suggest that the ICC prosecutor had the discretion to dispense with the concerns of the AU. Charles Jalloh, a widely published professor of international criminal law and former lawyer for Charles Taylor at the UN Special Tribunal for Sierra Leone, insisted that what the AU was asking for was already provided for in the Rome Statute.
Finally, Prince Zeid Al-Hussein was the first President of the Assembly of State Parties. His stewardship of the conversation, ending without a conclusion, appeared deliberate.
While Ms Diarra spoke of the desire by Africans to be trusted and listened to in the interests of peace, justice and reconciliation, Prof Muigai was more blunt: “We stand in the frontline with the international community in the fight against terror, piracy and drug trafficking,” he said, and if the country could be trusted with such responsibility, it ought to be trusted on issues of dealing with impunity.
After four hours, already a full 60 minutes outside the allotted time for discussion, the irritation was beginning to show in belligerent language: “We are co-operating not because we have been directed to do so but because we are committed to the rule of law,” said Prof Muigai.
It was not entirely an African position – Senegal, Cote d’Ivoire and Democratic Republic of Congo were not on the bus, while South Africa and Tanzania spoke with equivocation.
The voices from South America – Peru, Guatemala, Brazil, and Argentina -- blended with all of those of the Civil Society: immunity is equal to impunity.
They wanted recorded testimony admitted from people who had died or could not come to court, or has been interfered with. They also wanted restrictions on notifying the defence when witnesses incriminated themselves relaxed, the Prosecutor to disclose intermediaries and ease the way for local trials. The lynchpin of the amendments was to allow accused persons to write to the court seeking to be excused from attending trial, and to be guaranteed automatic excusal if they are head of state or government.
It was a lost cause, and a feeling of guilt was beginning to wash over some of the delegations that Kenya would walk away from the assembly empty-handed. Over the weekend, Greece and Guatemala led discussions to amend the rules so that individuals with special responsibilities could be excused from physical attendance of court proceedings.