Week of setbacks for Kenya at The Hague

Saturday November 23 2013

Attorney-General Githu Muigai. As part of the main presentations, Kenya’s AG, Prof Githu Muigai, made a strong speech, detailing Kenya’s cooperation with the court in the trial of the cases, and making the point that the ICC must not be allowed to become “medicine which when taken kills the patient”  PHOTO/FILE

Attorney-General Githu Muigai. As part of the main presentations, Kenya’s AG, Prof Githu Muigai, made a strong speech, detailing Kenya’s cooperation with the court in the trial of the cases, and making the point that the ICC must not be allowed to become “medicine which when taken kills the patient” PHOTO/FILE 

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The annual Assembly of States Parties of the Rome statute would have passed on as an ordinary meeting of members who support the ICC.

By coincidence, however, the meeting was coming soon after the rejection by the UN Security Council of Kenya’s request for a deferral of the cases facing the country’s presidency before the ICC.
Members of the Security Council had come under massive pressure from the African Union to allow a deferral of the Kenyan cases for 12 months, a mechanism provided under the Rome statute.

The informal discussions among Council member states revealed that the eight votes needed to pass the resolution were unattainable. However, Rwanda, a current member of the Council and a strong supporter of Kenya’s cause for a deferral, insisted on a vote well-knowing that it would fail.

When the vote happened, on November 15, Kenya’s application was dismissed, with the majority of the states abstaining from voting, including three permanent members, the United States, the United Kingdom and France. Two other permanent Council members, Russia and China, however, voted in favour of a deferral of the cases.


In disallowing a deferral, the majority considered that the ICC had recently shown flexibility in allowing Kenya’s Deputy President William Ruto, on trial before the court, time off to attend to national duties. The Council, therefore, hoped that the AU grievances would be dealt within the organs of the Rome statute, including the ASP, which happened to be one week later.

This immediately turned this year’s ASP from an ordinary annual routine, into a forum that could possibly address some of the complaints by the African continent against the ICC. A raft of proposals notified to the secretary general to amend the Rome statute to deal with some of these grievances, gained sudden importance.

Kenya had proposed amendments to article 27 of the statute to provide that no serving head of state should be put on trial. At its extraordinary summit in October, the AU had passed a resolution to the same effect. This amendment, if passed, would merely reflect the AU position not to try sitting heads of state. Kenya also proposed an amendment to article 63, to codify the decision by the court on the excusal application by Mr Ruto.


Jordan, Botswana and Liechtenstein teamed up to propose an amendment to the Rules of Procedure of and Evidence, to provide that attendance of an accused at trial could be dispensed with, if alternative arrangements were made through the use of technology or if the accused was represented by counsel.

However, Kenya came up with its own parallel proposals to amend these same rules. Kenya’s proposals were the same in substance as those proposed by these three countries. Sources indicate that a belligerent Kenya, smarting from defeat at the Security Council, was not going to allow “three small states” to lead the agenda on its vital interests.

In addition to the proposals by Kenya and the three countries, the United Kingdom also suggested amendments that would allow the use of technology, specifically video link, in the place of personal attendance of the trial.

However, the amendments to the statute faced one serious problem. They had been proposed too close to the ASP and legally they could not be discussed. The Rome statute requires that proposals to amend any part of it must be notified to the UN Secretary General at least three months before. These proposals were made only three weeks before.

There were other problems as well. There had been insufficient consultation with the court about these amendments. Normally, organs of the court have significant differences when it comes to proposals to amend the statute. In the time available, it would not be possible to build consensus among them.

The Bureau is the executive organ of the ASP, and organises the annual meeting. Hasty consultations between the Security Council and the Bureau were held in the wake of the anger that Africa exhibited over the failure of the deferral request. It was agreed that the ASP would provide a way of demonstrating that the UN respects Africa, despite the deferral failure, and contrary to the claims AU had been making.


The ASP would now include a session during which the concerns of the AU about the trial of serving heads of state would be discussed. As the ASP was now very close, it proved difficult to get speakers at such short notice. There was also anxious discussion as to what role Kenya should play in the session. The concern was that the session should not be turned into a forum for influencing the trial of the Kenyan cases before the court and that it should merely discuss AU/ICC relations generally.

It was reluctantly decided that the Kenyan Attorney General, as the leader, be given a role among the panel of speakers. Other speakers selected for the panel were independent academics, expected to provide objective views on the matters under discussion. To provide an African voice, Prof Charles Jallow, a US-based West African scholar, was selected for the panel.

The session lasted more than six hours. As part of the main presentations, Kenya’s AG, Prof Githu Muigai, made a strong speech, detailing Kenya’s cooperation with the court in the trial of the cases, and making the point that the ICC must not be allowed to become “medicine which when taken kills the patient”. He described Kenya’s security situation which he depicted as delicate, including the threats of terrorism, the country’s role in Somalia, and also as a host to refugees. In his view, continuing with the Kenyan cases when the country faced all these threats had moved to situation from one of presidential immunity to one of “state immunity”, because, in his view, the primary duty of the Kenyan state is to ensure its own survival.

The academic presentations during this session indicated a strong hesitancy towards amendments that would allow presidential immunity, arguing that international law had moved away from presidential immunity for more than half a century and that to bring it back would be a major blow to gains made in international law.


The general discussion that followed was designed to allow states to provide reactions to the proposals. After the strong speeches in Addis Ababa, which led to a resolution on head of state immunity, it was expected that the session would provide fireworks, and that African countries, angry afresh with the Security Council rejection of the deferral request, would again make memorable speeches.

However, the speeches made by representatives of African countries were mostly tame, and very few of them remained supportive of the head of state immunity position that they had taken last month. South Africa, a strong supporter of Kenya in Addis Ababa, made non-committal remarks which called for further dialogue. Non-African countries spoke strongly against the immunity provisions. Russia reminded the meeting that it had supported the request for a deferral because it then believed, and still believes, that international peace and security was at risk.

In the end, none of the fire evident in Addis Ababa was reproduced at The Hague. Kenya was disappointed and sources say that Tanzania in particular was told off for not speaking at the session, contrary to what had been agreed.

Also the states had not counted on the strong showing by NGOs. These are not allowed to speak in Addis Ababa, but are given speaking roles in meetings of the ASP. Kenyan and international NGOs provided independent perspectives, for example, urging the position that the Kenyan Constitution does not allow for head of state immunity and that in promoting this resolution, the AU was encouraging Kenya to contravene its own constitution.


After the meeting, many African delegates indicated that they had never heard about the state of Kenyan law on head of state immunity and that they might have taken a different stand on the matter if these facts were known.

In a meeting called by the African group to review their performance at the session, states told Kenya that they had tried their best but the head of state immunity proposals never stood a chance. It was agreed that another extra-ordinary AU meeting be convened in Addis Ababa, to provide a mandate that would enable the AU to engage directly with the ASP, with a view to calling for an extraordinary meeting of the ASP, which would pass the amendments, whose notice would have matured.

Alarmed by the setbacks of the week, Nairobi is reported to have dispatched a fresh team to the Hague, including political activist Moses Kuria, former Garsen MP Danson Mungatana and Kiharu Member of Parliament Irungu Kangata, joining Ugandan David Matsanga, who was already at the ASP. The first business they carried out was to convene a press conference in the sidelines of the ASP, during which they attacked Kenyan civil society who were at the meeting, questioning what they were doing there and who had paid for their travel.