Tag Archives: Macharia Kamau

Debacle at the Security Council

In a recent interview with a Kenyan TV station, Kenya’s Permanent Representative to the UN suggested that the Permanent Members of the Security Council did not need to use their veto power with respect to the draft resolution to defer Kenyatta and Ruto’s trials. According to him, this was not a matter that should trigger the ‘nuclear option’ of the veto power. It seems that 3 of the 5 permanent members took his advice… and abstained instead of voting ‘no’ (which automatically vetoes a resolution). They were supported by an additional 4 abstentions from non-permanent members. Only 7 members voted for the resolution- 9 affirmative votes were needed for it to pass- so one can’t even say it was a close call.


I call it a diplomatic debacle because the Kenyan/AU strategy employed was so shambolic and confrontational that it was one of those rare occasions in recent times that a Council resolution failed to pass despite the absence of a veto from a Permanent Member.


The result is that the Jubilee Coalition has taken to calling the 8 Security Council abstainees ‘cowards‘ and even slapping away a hand offered in compromise. If ever there was a showcase of the chaos caused by putting a nation’s foreign policy at the service of two ICC indictees, this is it.


This article aptly dissects the way in which the Jubilee government has got itself into a tangle over these cases; with the nation finding itself with strange bedfellows such as Azerbaijan’s ruling mafia (according to wikileaked cables).




Ruto Permitted to Miss (Some) Court Sittings

Trial Chamber 5(a) has held that Ruto is excused from attending most court sittings during his trial. The majority (one judge dissented) emphasised that this decision was an exception to the general rule that the accused be continuously present at trial. The court demanded that he deposit a waiver of his right to be present (which he later did). This conditional excusal is further restricted by requirements for Ruto to be in court for:-

  1.  All opening statements in their entirety
  2. All closing statements in their entirety
  3. When victims present their views and concerns in person
  4. The entirety of judgement delivery
  5. The entirety of any sentencing, victim impact or reparation hearings
  6. Any other attendance the Court directs

How did the majority reason out their judgement? The judges read statute as a whole, looked at international law and drew inspiration from jurisprudence of various states to come to their conclusions. They agreed with Ruto that presence at one’s trial was a right under the ICC statute, and this right could be waived. But they also held that the right was attached to an accused’s duty to appear, a duty which the court could exceptionally waive at it’s discretion. This discretion could only be applied on a case by case basis having regard to what is ‘fair, just and reasonable’. This, the majority felt, was consistent with the principle of judicial control of proceedings. The dissenting judge felt there was no way in which the statutory provision (Article 63(1)) could be read as containing discretion as to the presence of the accused.

Interestingly, this discretion cuts both ways. It both allows the judges to waive the duty to appear and at the same time allows the judges to decide to proceed with the trial if the accused (who is not in custody) decides to abscond after promising to appear. The judges, however, made it clear that this did not apply to certain other accused who do not submit to the jurisdiction of the court and are not nationals of ICC state parties. Such accused could not be tried in their absence.

In this way, the judges tried to deal with the concerns that the accused Ruto might through wilful absence use his position as Deputy President to delay or frustrate the conduct of his trial, knowing there would be no power within Kenya to forcibly deliver him to the Hague (or wherever the court may conduct sittings in East Africa).

The test the judges set forth to determine whether to excuse the accused from continuous presence was whether there were ‘exceptional circumstances’ based upon ‘important functions’ of an ‘extraordinary dimension’ that the accused had to perform. In this case, they felt that Ruto satisfied this test as Deputy President.

This functional test is emphasised by the court several times; clearly the judges wanted to avoid the accusation made by the Legal Representative for Victims that allowing Ruto the waiver would violate the Rome Statute by showing undue favour to Ruto by virtue of his status as Deputy Head of State. The majority was at pains to point out that it was the ‘important’ and ‘demanding’ functions that he performed that informed their decisions, not ‘merely the gratification of the dignity of his own occupation of the office’.

The Judgement is, in my opinion a novel route for the ICC. In one stroke, the judges both spell out the right and duty to be present at trial, while also trying to ensure that the trials will proceed unimpeded, irrespective of the accused’s willingness to be present. There is, however, the troubling prospect of accused persons getting away with chutspah (loosely described as slaying one’s parents, then pleading orphanhood in mitigation). The court argued that there was nothing wrong with an accused (who’s not in custody) running for political office while awaiting trial so there was no wrong-doing that would create the conditions for chutspah. It’s still tough to understand why an accused (Ruto) who knew he was awaiting trial before the election and was warned that holding the post of Deputy President would affect his trial, his ability to perform his public duties, or both, could then argue after the election that the demands of being Deputy President are too great for him to be continuously present at trial. This could send a worrying message that confirms to alleged international criminals that if you face an ICC trial, a position near the top of the pyramid of power is the best spot from which to strike bargains with the court. This suspicion is, however, tempered by the court’s comments that the national majority [who elect an accused] cannot use democracy to avoid an inquiry into international crimes committed against a minority.

I may be wrong, but I read that paragraph of the decision as a subtle criticism of certain politicians (and at least one senior Kenyan Diplomat) who have been crowing that the legitimacy of the ICC trials ended with the announcement of the March 4 election results.

Ironically, it was Sang who brought up the original issue of allowing the accused to participate at trial via video link without being physically present. His counsel then about-turned and stated that Sang wanted to be present throughout his trial. So the person who raised the issue of his right to be absent will possibly be the only one of the three (Kenyatta’s application is still pending) who doesn’t benefit.

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.

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

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