ICC Defendant in London

Uhuru Kenyatta travelled to London this week to attend a conference on the future of Somalia. During the visit, he met with David Cameron about the ‘pivotal’ relationship between Kenya and the UK. Last month, Kenyatta met the Somali President in Mombasa, so it seems the London meeting had been building for a while behind the scenes. While a local NGO protested about the visit, the truth is that Kenyatta, unlike Al Bashir, the other ICC indicted President, can travel freely since the conditions of his Summons don’t restrict his movements outside Kenya . Al Bashir, on the other hand, is technically a fugitive from justice since there’s a warrant out for his arrest.

It’s arresting that the British PM is meeting Kenyatta at a time when the UK is struggling to close a dark chapter in its colonial history by trying to reach a settlement in a lawsuit filed by former Mau Mau fighters. Historians shall surely have fun drawing parallels between Kenyatta’s ‘personal challenges’ at the Hague and the UK’s public shame over its colonial crimes.

Regional efforts to prevent future ICC cases such as those facing Kenya’s leaders continue: we will know by end-month or early June whether the East African Court of Justice will get jurisdiction over Crimes against Humanity, Genocide and War Crimes. This endeavour was one of many launched to save ‘the Hague Six’ 2 years ago. Once the futility of preventing those cases from proceeding was apparent, it became a project to ensure that future international crimes in the region be tried closer to home (and presumably with ‘friendlier’ judges and prosecutors). Many have already pointed out that the EACJ is not institutionally designed as a criminal tribunal, but the race to halt the Hague is unfaltering.

Update May 09 2013: Kenya is still pushing for the UN to stop the ICC cases. This is according to a leaked letter supposedly written by Kenya’s Permanent Representative to the UN. The letter was meant for the President of the Security Council.

I’ve only seen excerpts but a few general comments can be made: under the Rome Statute, the powers of the Security Council to halt a case are quite limited. The SC can ask for a deferral under Article 16- but this is only for 12 months at a time, must be through a Chapter VII resolution and must be renewed on expiry.

According to the letter, Kenya is not asking for a deferral but for the ‘termination of proceedings’ which, I think, is quite beyond the Statute of the Court. However, the language in the letter, which calls Ruto and Kenyatta ‘the glue that binds the country’ and warns of violence in the region if the two are forced to face trial after winning the Presidential election, points to a subtext in which the Permanent Representative hints at the use of the Security Council’s broad powers under Chapter VII to halt the ICC proceedings as a threat to peace and security in the region (remember the perception of Kenya as a ‘pivot’ in East Africa). Such a SC Resolution might provide UN member states that are also parties to the Rome Statute with a justification through Article 103 of the UN Charter for avoiding their ICC treaty obligations. The letter excerpts, however, sound exaggerated, especially the bit about the glue. It’s worth remembering that the AG made a different argument about Kenya’s stability and progress in the fight against impunity in recent filings before the court; let’s see how far this goes…

Update May 23: The Kenya’s Permanent Representative to the UN attempted to defend the letter in a recent article– his defence, unfortunately, simply re-hashes the arguments in the letter rather than shedding light on why he thought it was a good idea. Furthermore, it’s difficult to take his response seriously when he says this:

“the main purposes of the ICC seem to be to advance the career interests of a handful of jurists and academics, and to enrich international law jurisprudence. I can see no reason to sacrifice the interests of Kenyans to such vain ends.”

 

The Permanent Representative may dislike the ICC’s choice of defendants, but fighting impunity is rarely academic. If anything, his efforts on behalf of the accused (though he claims it is on behalf of Kenya) show the necessity of the ICC where the political elite of a state are committed to using any and all means to quash a judicial process.

 

The Security Council invited Kenya to argue the merits of its request/demand that the Council act to terminate the Kenya Cases.

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Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa

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