Kenya Seeks Delay to ICC Trials

Kenya’s deputy president William Ruto has confirmed that his government has asked the United Nations Security Council to postpone the cases against him and President Uhuru Kenyatta at the International Criminal Court (ICC).

The request follows a resolution issued by the African Union (AU) during an October 11-12 emergency meeting in which member states called for the Kenyatta and Ruto trials to be suspended until the two men step down from office.

Under the ICC’s founding Rome Statute, the Security Council can ask the court to halt a case if doing so is deemed to be in the interests of national or international security. The maximum deferral period allowed is one year, although this can be renewed a year at a time.

NATIONAL SECURITY VS. INTERNATIONAL TRIALS

Moves to get the two Kenya trials at the ICC deferred gained traction after the attack on a Nairobi shopping mall in September that left 67 people dead and 300 injured.

Speaking to journalists in The Hague on October 15, Ruto said the government’s request for a deferral was designed to ensure that he and Kenyatta could remain in Kenya to focus on the security issues facing their country and the wider East Africa region in the aftermath of the attack, carried out by the Somali Islamist group al-Shabab.

“We believe there are legitimate reasons for the deferral of this case to give Kenya the best possible chance to handle the serious challenges that exist in our region, in our country, on a matter that is of global concern,” Ruto said.

Kenyatta and Ruto are charged in two separate cases relating to the violence that rocked Kenya in late 2007 and early 2008. A former broadcaster, Joshua Arap Sang, is also charged in Ruto’s case.

The violence followed a disputed presidential poll in December 2007 and resulted in over 1,100 deaths, with 650,000 people forced from their homes.

The ICC charged the suspects in December 2010. In March 2013, Kenyatta was elected president with Ruto as his deputy.

The latest Kenyan government initiative is only the latest in a series of attempts to alter the course of the ICC cases.

The AU has previously written to the Hague court asking for the cases to be referred to Kenya’s national courts so that the suspects can be tried there. The court responded that a request of this kind should be made to the judges handling the two separate cases.

Previous efforts by the Kenyan government to get the cases returned to national jurisdiction failed on the grounds that the authorities had not undertaken genuine investigations into the crimes charged.

In 2011, Kenya asked the Security Council to defer the ICC’s ongoing investigations, but that bid was rejected. In May this year, Kenya’s ambassador to the UN made an unsuccessful attempt to get the Security Council to drop the ICC cases altogether.

As recently as October 9, Kenyan foreign minister Amina Mohammed said her government had not yet considered re-applying for a deferral.

Meeting in the Ethiopian capital Addis Ababa, AU leaders approved the creation of a contact group consisting of the bloc’s chairman and five members representing each of its regions. Its task is to engage with the Security Council, particularly the five permanent members, and impress on them the need to postpone the cases against Kenyatta and Ruto.

Ruto’s trial got under way last month and Kenyatta’s is due to start on November 12.

AU leaders agreed that Kenyatta should not go to The Hague until the Security Council reaches a decision.

“If that is not met, what the summit decided is that President Kenyatta should not appear until the request we have made is actually answered,” Ethiopian foreign minister Tedros Adhanom told journalists in Addis Ababa following the meeting.

KENYAN LEADERS HAVE WESTERN SUPPORT

IWPR understands that many key Western states would be sympathetic to a postponement of the cases. Some have strong economic interests in Kenya and the wider region which could be threatened by pushing for Kenyatta and Ruto to face trial. They are also acutely aware of the security issues facing Kenya and its neighbour Somalia, and their implications for the wider region and global terrorism.

Ahead of the presidential election this March, Western diplomats warned of the potential repercussions of electing candidates who had been charged by the ICC. The UK said it would only have “essential contact” with the leaders if they were elected. However, analysts say those warnings have not been followed up. Days after Kenyatta was confirmed as president, he was invited to London for a conference on security in Somalia.

According to an article in London’s Daily Telegraph newspaper on October 14, European diplomats have already drafted a resolution on a deferral of the Kenya cases.

Analysts say, however, that Western governments would be reluctant to embark on a path that would have grave consequences for international justice generally and the standing of the ICC.

Phil Clark, an expert in international justice at London University’s School of Oriental and African studies, notes that Western countries have largely kept quiet about the Kenyan cases since Kenyatta and Ruto came to power. But he says that key states like Britain and the United States – both permanent members of the Security Council – are broadly supportive of international justice and will be very reluctant to make any decision that would be seen to undermine the ICC.

“The UN Security Council will take quite a conservative line on this,” Clark said. “In New York there is a real reluctance to be seen to be meddling in these cases.”

Clark and other experts point out that the fact that the Security Council has rejected moves by other states to postpone ICC cases will make it difficult to support Kenya’s request. It did not agree to postpone ICC investigations in Darfur, as requested by the AU and the Organisation of the Islamic Conference in 2008.

Even if governments are sympathetic to a request to defer the Kenyan cases, they will be wary of setting a precedent which would affect the ongoing case against Sudanese president Omar al-Bashir.

“There is no chance of success [for Kenya’s request],” said Nicholas Cheeseman, director of the African Studies Centre at Oxford University. “Because the basic bottom line is they [the Security Council] would have to change their entire policy on Sudan.”

Asked whether Britain would oppose Kenya’s request for a deferral, the Foreign Office said only that “the UK is a strong supporter of the International Criminal Court”.

AFRICAN UNION NOT UNANIMOUS ON ICC WITHDRAWAL

While the AU meeting set a course of action on the Kenya cases, little progress was made on calls by some member states for a mass withdrawal from the ICC – the reason the emergency meeting was convened. (For more on this issue, see African Bloc "Unlikely" to Leave ICC .)

The bid to withdraw is being led by Ethiopia, Sudan, Kenya and Zimbabwe, with support from others in East Africa. Last month, Kenya’s upper and lower houses of parliament endorsed a move for the country to withdraw.

The AU meeting showed that support for the idea was not universal among member states.

Clark said the meeting was an “anti-climax”, in that many African governments appeared reluctant to pull out of the court.

“The AU has been shown up as quite a divided and discordant entity,” he said, noting that some states did not want to be seen to be endorsing impunity for crimes.

Speaking to journalists in The Hague on October 16, Ruto said that he would continue to cooperate with the ICC despite the political efforts going on around his case. He said that rather than having proceedings postponed, he would prefer the case against him to continue, as long as judges granted him leave to miss hearings. That would enable him to remain in Nairobi to attend to his official duties and the security situation. Ruto said Kenya would withdraw the deferral request to the Security Council if he and Kenyatta are excused from continuous attendance by the court.

ICC trial judges have already ruled that Ruto can miss sections of the proceedings, but the prosecution has challenged that decision and the matter is currently before the appeals chamber.

Kenyatta has made a similar request, proposing that he follow proceedings via video link from Nairobi.

A final ruling on whether the two leaders can remain in Kenya for much of their trials could affect the proposal to defer the cases, since if this was approved, the “national security” argument would lose some of its weight. Critics say that the ICC has been slow in reaching a decision that could have wider ramifications, and that it should have been more prepared for such a scenario given that it was set up to put senior state officials on trial.

“The court needed to look into this from the outset,” Clark said. “If it was serious about dealing with serious suspects, that was probably always going to be something that would come up. We’ve seen it fumble along and almost make the rules up as it goes along.”

Bernard Momanyi is a reporter for ReportingKenya.net and News Editor at Capital FM in Nairobi. Simon Jennings is IWPR’s Africa Editor.

This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Capital FM.