An AU Absurdity: African Leaders Promote Impunity for Themselves


Dr. Alex Odora

At the recently concluded AU special summit, the African rulers resolved that no sitting head of state must stand trial at the ICC regardless of how horrendous crimes the accused is charged with.

Thus, with many serious issues facing Africa the AU considers it a priority to protect its members from accountability, individual criminal responsibility, and ultimately promote impunity.

It is the duty of the UN Security Council to encourage the application of, and respect for, the rule of law. It must be seen to be on the right side of history.

The AU and African heads of state must be denied any opportunity to promote impunity and to continue to remain unaccountable to the people of Africa.

At the recently concluded African Union (AU) special summit in Addis Ababa, the African rulers resolved that no sitting head of state must stand trial at the International Criminal Court (ICC) regardless of the horrendous nature of the crime the accused is charged with.

The AU further resolved to request the Security Council to defer the prosecution of President Kenyatta of Kenya, and his deputy William Ruto for one year.

It is interesting that with many serious issues facing Africa, particularly armed conflicts, terrorism, gross violations of human rights, corruptions, and many more, the AU considers it a priority to protect its members from accountability, individual criminal responsibility, and ultimately promote impunity.

The AU decision to seek referral of President Kenyatta’s on-going case at the ICC is a weighty one. In making its decision, the Security Council needs to balance the rights and interests of victims to a prompt and speedy trial against the rights of President Kenyatta and his deputy for a fair, speedy and public trial.

At some point, the interests of victims and accused with respect to a fair, public and speedy trial coincides.  This is one important reason why the Security Council must allow the trial to proceed. It is in that context that Article 16, with all its flaws must be appreciated.

Article 16 of the ICC Statute authorizes the UN Security Council to defer investigations or prosecution, at any stage of the proceedings, for a period of 12 months, in a resolution adopted under Chapter VII of the UN Charter. The Security Council may renew the deferral under the same conditions after every 12 months. The deferral may be authorized for an indefinite period, but each time the renewal is for a 12-month period.

The impact of the UN Security Council deferral is imprecise but serious nonetheless. It is not expressly provided for in the ICC Statute as to what the precise consequences of a deferral on the on-going cases are. The issues for consideration to determine the impact of deferral of a case includes whether a deferral may impact on cooperation between states and the Prosecutor.

May the Prosecutor, for example, be able to freely visit Kenya and continue to interview witnesses during the duration of the deferral? Or, for example, will the act of deferral freeze all contacts between the Prosecutor and her witnesses, including contacts with witnesses who are also victims.

There are no precedent or previous decisions of the Security Council on deferral of cases generally and deferral of on-going cases in particular to inform us on possible consequences of such action.

It is reasonable to infer that UN Security Council deferral, for whatever period, will undermine on-going and any future investigations or prosecutions after the deferral is lifted. Fundamentally it will erode or destroy trust between the Prosecutor and witnesses on the one hand, and the Prosecutor and Victims who are also witnesses, on the other.

A deferral of a case will likely benefit accused persons. It will protect accused persons from prosecution, assist them in avoiding accountability for their crimes and denies justice, compensation and possible closure to victims. Overall, a deferral of any case tends to promote impunity and to undermine the rule of law.

The other challenges with deferral of a case already before the ICC are the trigger mechanism. Article 16 is triggered only after the applicants have satisfied the Security Council that continued investigations and prosecutions of President Kenyatta and his deputy is a threat to international peace and security as defined in article 39 of Chapter VII of the UN Charter.

The burden of proof is on the applicant.

It is therefore incumbent upon the applicants to demonstrate to the satisfaction of at least nine members of the Security Council with the concurrence of the five permanent members casting a positive vote or abstaining. A negative vote by any one of the five permanent members constitutes a veto and therefore, kills the draft resolution.

Thus, it must be persuasively demonstrated by AU and Kenya that the mere presence of President Kenyatta and his deputy at The Hague for trial will constitute a threat to international peace and security, namely, a threat to the peace, a breach of the peace or an act of aggression as stipulated in article 39 of the UN Charter.

Once the applicants establish the existence of a threat to international peace and security, the Security Council will then take measures as stipulated in Article 16 of the ICC Statute together with article 39 of the UN Charter, to maintain or restore international peace and security by directing that the trial of an accused is deferred for a period of 12 months.

This raises troubling questions. First, does President Kenyatta’s travel from Nairobi to The Hague to attend his trial constitute a threat to international peace and security?  If so, to whom or which state does the prosecution of President Kenyatta cause such a threat to the peace?

On the other hand, Deputy President Ruto has already travelled to The Hague several times and his presence at The Hague did not constitute a threat to international peace and security.

Similarly, would the prosecution of President Kenyatta at The Hague constitute a breach of the peace or acts of aggression? If so, then against whom, or which state, is the breach of the peace or acts of aggression directed?

Additionally, is there any empirical evidence that once the Security Council authorizes President Kenyatta’s deferral, not prosecuting him at The Hague would necessarily function to maintain or restore international peace and security as stipulated in article 39 of the UN Charter?

In the course of its deliberation, the primary issue the Security Council will have to address is whether the joint AU/Kenya request meets the threshold of article 39 of Chapter VII of the UN Charter?  If the answer is affirmative, then the case will be deferred.

However, there are a number of reasons why the Security Council deferral of the case may be problematic. First, the request does not appear to meet the minimum requirements of the ICC Statute and the UN Charter. The threshold of any threat to international peace and security sufficient to permit the case to be deferred appears not to have been met based on specific case of the Kenya situation.

On the contrary, there appears to be credible evidence that a deferral of the case would encourage impunity, create unequal classes of accused persons before the ICC and therefore violate the principle of equality of all accused persons as enshrined in the ICC Statute.

Furthermore, any further delay in concluding the trial may cause irreparable damage and trauma to victims and prosecution witnesses. And, finally, it is possible that granting the request will create tensions between those who support the alleged perpetrators and those who support victims.

In summary, it is the duty of the Security Council to encourage the application of, and respect for, the rule of law. It must be seen to be on the right side of history. And, the AU must be denied any opportunity to promote impunity and to continue to remain unaccountable to the people of Africa.

By Alex Obote-Odora,
Consultant in International Criminal Law and Policy, Sweden.


  • African brainwash

    Kenya Withdrawal from ICC a Symptom of Political Brainwash

    JURIST Guest Columnist Roland Adjovi, Academic Director of the Arcadia Center for East African Studies says that while the Kenyan vote to withdraw from the ICC masks the greater danger of polarization in Africa opposing much needed applications of international law …

    On September 5, 2013, the Kenya Parliament adopted a motion for repealing their International Crimes Act [PDF], which domesticated the Rome Statute. The long-term outcome of the motion is the subsequent withdrawal from the Rome Statute. This has been extensively covered in the news as a worrisome circumstance. However, I wish to disagree for two reasons while providing evidence that the worry should be elsewhere, less covered in the news. Before embarking on why the worry is misplaced, one needs to have a proper overview of the facts.

    In December 2007, there were general elections in Kenya with two political coalitions in opposition: One led by the incumbent president, Mwai Kibaki; and the other led by Raila Odinga. Kibaki is alleged to have cheated and been wrongly declared the winner. That allegation, and the subsequent secret and quick swearing in ceremony, led to what is now known as the post-elections violence (PEV) in Kenya, resulting in some 1500 deaths and hundred of thousands displaced. Under the mediation led by an AU panel chaired by Koffi Annan, the parties agreed and set up various commissions among which one had the mandate to investigate the crimes committed during the crisis. That PEV Commission, or Waki Commission, issued its report with a confidential list of persons who appeared from the investigations as the most responsible for the crimes. The Commission recommended criminal prosecution before a Special Tribunal for Kenya or, preferably, at the ICC because the Kenyan judiciary could not be trusted. The Kenyan Parliament, with the support of both parties, failed to set up the Special Tribunal and the AU Mediation Panel [PDF] decided to refer the matter to the ICC. As a consequence, Annan handed over to Luis Moreno-Ocampo, the then-Prosecutor of the ICC, the confidential list. After preliminary investigations, the Prosecutor successfully sought authorization from the Pre-Trial Chamber to open a situation. He later sought the confirmation of two indictments, one against Uhuru and two others on the side of Kibaki, and the second against Ruto and two others on the side of Odinga. After the confirmation hearing, one accused from each indictment was discharged. Later and upon her request, Fatou Bensouda, the new ICC prosecutor, obtained the discharge of the remaining co-accused of Uhuru: only three Kenyans remain therefore in the two cases for trial. The critical issue here is the status later on acquired by two of those three accused: in the latest elections in Kenya (March 2013), a new political coalition won with Uhuru the President succeeding to Kibaki, and, surprisingly, Ruto as the Vice-President. Since then, the Kenyan executive has been very active on two opposing ends: both Uhuru and Ruto have continuously stated that they would fully cooperate with the ICC, but their government has been militating for African States to stand with them against the ICC.

    The move in the parliament is therefore not new but just another political step in responding to the continuation of the criminal procedure against the two heads of the Kenyan executive. But this is just a motion and not yet an act. It is just the starting point of the legislative process and there is no guarantee that any bill will be agreed upon, let alone that such a bill would ever be adopted into an act. There is therefore still a long way before we have a binding instrument for withdrawal from the ICC Statute. And the debate in the parliament has been very heavy, with the opposition strongly opposing the motion: the opposition ended leaving the meeting and only the ruling party voted for the motion. In addition, if ever that act was adopted, it would be effective only a year after having been properly notified to the UN Secretary General while it would not have any impact on the present cases which are at the heart of the move. As a consequence, this motion should not have led to any panic in the movement in support of the ICC. However there is a hidden and ongoing plan at the continental level which is more serious.

    Indeed, a coalition of African leaders panicking on the prosecution by the ICC is growing and quite successful in a political brainwash on the continent. That coalition was composed of [President of Sudan Omar] Al Bashir, [Former Libyan President Muammar] Gadhafi and [President of Rwanda Paul] Kagame. Now, the Kenyans have joined it and have dragged their other East African fellows, especially [President of Uganda Yoweri] Museveni with them. But, their argument on political bias by the ICC is misleading and one needs to consider how these cases came to the court. The majority was referred by the African states themselves: Democratic Republic of the Congo, Uganda, Central African Republic, Côte d’Ivoire and Mali. Two were referred by the UN Security Council where none of the three African States sitting objected: Res. 1593 on Sudan (Algeria, Benin and Tanzania) and Res. 1970 on Libya (Gabon, Nigeria and South Africa). In the first instance (Sudan), Algeria abstained but did not oppose the vote, while in the second instance (Libya) even South Africa voted in favor of the resolution. Only the situation of Kenya is the result of a proprio motu decision of the ICC Prosecutor, but one needs to recall that the strong suggestion came from the Kenyan PEV Commission led by a Kenyan judge, Waki. In fact, in most cases, it seems that African leaders are the only to be blamed for bringing the ICC into their domestic politics. But the political campaign is so successful that many Africans are convinced that the ICC is against Africa. This week the AU will hold a meeting [PDF] on the way forward with a potential concerted plan for withdrawal, boycott or alternative judicial mechanism. Any such move would be highly regrettable for the African people.

    Roland Adjovi is the Academic Director at the Arcadia Center of Arcadia University in Arusha, Tanzania. He previously served as Senior Legal Officer for the Registry of the International Criminal Tribunal for Rwanda and as legal assistant for the Organization for African Unity, as well as serving as Editorial Assistant for the African Yearbook of International Law (through AFIL, the African Foundation for International Law).

  • AU mass treaty-cide

    The AU’s Mass Treaty-cide Brinksmanship

    harge of the light brigade

    The African Union’s threatened “mass treaty-cide” (a phrase I am compelled to coin to describe the bizarre threatened walkout on the Rome Statute) fizzled out. Those who predicted the “extraordinary summit” on the “AU’s relation with the International Criminal Court” (ICC) would end in a big bang were pleasantly amused to see it wrap up with a whimper about “undertaking consultation with members of the UN Security Council” to seek “deferral of proceedings against the President and Deputy President of Kenya as well as the President of the Sudan in conformity with Article 16 of the Rome Statute.” After all, October 11-12, 2013 will not live in infamy as I had feared. The scheme to convince the 34 Rome Statute signatory African states to commit “mass treaty-cide” was a total flop.

    The Sturm und Drang of a mass walkout on the Rome Statute proved to be nothing more than a tempest in a teapot. The tag team of Hailemariam Desalegn and Teodros Adhanom of the ruling regime in Ethiopia bleated out their stealthily cloaked message of a walkout but nobody was buying it. Adhanom broadsided the media for bearing bad news: “Some media reported earlier today that we are divided but we have seen no sign of any of that. We are not divided and we will not be divided. Unity is the only option.”

    Adhanom was right in a way; the group of 34 signatory states were united in their refusal to dump the Rome Statute. Desalegn and Adhanom were the last two men standing alone flying the white flag of flight from the ICC. No signatory state stepped forward to dump the Rome Statute. African signatories understood the Statute may not be good for African heads of states and warlords who commit gross human rights abuses, but it is damn good for ordinary Africans. After all the huffing and puffing at the “extraordinary session”, the ICC proceedings will proceed and the trials of Ruto and a co-defendant will continue. Kenyatta’s trial is set to begin on November 12. Bashir will remain a fugitive from international justice with a hot warrant on his tail.

    Brinksmanship of Mass Treaty-cide: Dangerous game of chicken

    The significance of the African Union’s “extraordinary summit” on the ICC on October 11-12, 2013 should be neither underestimated nor ignored. It should be appreciated for what it is: A dangerous game of brinksmanship. Those AU leaders who insisted on having the summit on the ICC were playing a game of chicken with one of the most important international human rights institutions to emerge in the post WW II period. They hoped to load up the 34 signatories of the Rome Statute on a bus that was careening on a collision course with the ICC, certain in the knowledge the ICC will blink and swerve at the last second. Fortunately, the ICC stood its ground and the AU bus drivers did not have any passengers on board with whom to play a game of chicken. They limped away in dismay mumbling something about transforming the ICC from an institution that investigates and prosecutes perpetrators of crimes against humanity, war criminals and genocide to a mediation club that brings together victims of human rights abuses with their abusers to sing kumbaya.

    Game plan to end-run the ICC

    The Hailemariam/Adhanom game plan to end-run the ICC was based on an appeal aimed at strategically galvanizing the 34 African signatory states to turn their backs on the Rome Statute. In their speeches, Hailemariam and Adhanom laid out a number of propositions they hoped would appeal to the signatory states: 1) “Sitting Heads of State and Government should not be prosecuted while in office. 2) Let bygones be bygones. There is a need in the continent to “balance justice and reconciliation in complex conflict situations”. 3) The ICC is a “political instrument targeting Africa and Africans.” 4) The 34 African states that signed the Rome Statute were snookered because they “joined the ICC perhaps fully concerned that the organization would promote the cause of justice with a sense of impartiality and justice. The practice so far however leaves so much to be desired.” 5) The ICC prosecution of Kenyatta, Ruto and Bashir will upset the “reconciliation process.” 6) The ICC and the U.N. Security Council use a “double standard of justice”– a harsh and unfair one for African suspects and something else for others. 7) “We should not allow the ICC to continue to treat Africa and Africans in a condescending manner.”

    It is ironic and the height of hypocrisy for “leaders” of a country that is not a signatory to the Rome Statute to pontificate and spearhead the effort to get other countries to abandon the Statute and the ICC. The only thing worse than a hypocrite is a cynical hypocrite!

    Give sitting African heads of state get out of jail free card

    Adhanom declared in his opening remarks that “the immunities of Heads of State cannot be taken lightly and our meeting should come out very clearly on this issue.” He demanded in his closing remarks, “sitting Heads of State and Government should not be prosecuted while in office.” Investigating and prosecuting heads of states “has wider ramifications for Kenya and Africa as a whole. We do not want this simplistic suspect/victim approach to destabilize Kenya and our region.” Adhanom argued the “search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace.”

    Adhanom is right in his contention that investigating and prosecuting heads of states “has wider ramifications for Kenya and Africa as a whole.” There is no question it will have a chilling effect on African leaders and warlords who commit crimes against humanity, war crimes and genocide with impunity. The certainty that the long arm of the International Criminal Court will snatch human rights violators in Africa will definitely cramp the styles of current dictators in power who abuse their citizens from their palaces and others who commit atrocities from their hideouts in the bush.

    Of course, heads of states and other human rights violators in non-signatory states such as Ethiopia have nothing to fear or be concerned about. They can and will go on committing crimes against humanity, war crimes and genocide with impunity. They are accountable to no one. They do what they will and even feel free to set up a wrecking crew for the ICC by telling tall tales and rumors of an ICC boogeyman race hunting Africans.

    Why shouldn’t sitting heads of states be investigated and prosecuted for war crimes, crimes against humanity and genocide? Adhanom provides no answer. It is ipsit dixit – Adhanom said therefore it is true. What Adhanom fails to understand (or is willfully ignorant about) is what is good for the goose is good for the gander. There are no good and bad criminals against humanity, war criminals and genociders. There is no moral or legal difference between a warlord and a head of state who commit such crimes. If one follows Adhanom’s warped logic in the context of Africa’s volatile politics, no one will ever be prosecuted. Rebel leaders and warlords who commit atrocities and seize power or are elected in rigged elections will remain free and at large for no reason other than Adhanom’s self-serving and preposterous maxim: “ Sitting Heads of State and Government should not be prosecuted while in office.” In fact, human rights violators in power will have great incentive to stay in power for decades committing more human rights violations because being a head of state makes them untouchable, above the law. On the other hand, what would keep rebel and militia leaders and warlords from demanding that they too be exempted from prosecution because they believe themselves to be the true leaders of a given country?

    Justice delayed is justice denied, injustice prolonged

    In his speech at the “extraordinary summit”, Hailemariam argued Bahsir’s prosecution at the ICC should be “deferred” because Bashir “has been demonstrating the necessary political leadership and commitment to resolve the Darfur issue and address outstanding issues with South Sudan.” Similarly, Kenyatta’s and Ruto’s prosecution should be “deferred” because of Kenya’s “adoption of the new Constitution, the reform of the judiciary and the holding of successful legislative and presidential elections [which] have opened a new chapter in the country’s political dispensation.” Moreover, because Kenyatta and Ruto “have played a critical role in reconciling the different communities and creating a peaceful condition for the smooth conduct of elections,” they deserve a break.

    Simply stated, Hailemariam argues the ICC should let Bashir, Kenyatta and Ruto off the hook because they now see the error of their old ways. This argument is tantamount to saying that a criminal suspect should be immune from prosecution because he has abandoned his old evil ways and has reformed and rehabilitated himself by becoming a good family man who goes to church/mosque/synagogue/temple regularly, gives alms to the poor and no longer steals, cheats, robs and kills. Alternatively, a suspect who committed a crime during war time or political conflict should be exempted because the suspect’s prosecution could endanger the current peace.

    Hailemariam’s notion of “deferred prosecution” by another name is known as delayed justice. Justice delayed is not only justice denied; it is injustice prolonged. Could there ever be a right time to prosecute an African head of state for crimes against humanity? How long must victims wait to get justice? How long should the ICC wait before it prosecutes a head of state accused of crimes against humanity?

    Over four decades ago, Chief Justice Warren E. Burger of the United States Supreme Court noted: “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.” I believe justice delayed is injustice prolonged.

    Let bygones be bygones

    There is a need in the continent “to balance justice and reconciliation in complex conflict situations,” pontificated Adhanom in his speech. There is a strange historical irony in this assertion. Hailemariam’s and Adhanom’s “visionary” late political godfather and the chief architect of the ruling regime in Ethiopia for over two decades thrived and prospered by keeping justice and reconciliation out of kilter; he would not even deign to temper justice with simple mercy. After the “visionary” leader ordered the massacre of hundreds of unarmed demonstrators following the 2005 parliamentary election in Ethiopia in which 193 persons were killed and 763 suffered gunshot wounds, his way of balancing justice with reconciliation was to jail dozens of major opposition party leaders, civic society and human rights advocates and journalists on bogus charges of “treason.” That late “visionary” leader was so blinded by vengeance and retribution he threw Birtukan Midekssa, the first female political party leader in Ethiopian history in prison and in prolonged solitary confinement without so much as a court hearing. He later gloated, “There will never be an agreement with anybody to release Birtukan. Ever. Full stop. That’s a dead issue.” That same “visionary” leader jailed his opponents after he convicted them in a kangaroo court trial and later forced them to drop on their knees and publicly confess their “guilt” in a humiliating manner before he granted them a pardon. Now Hailemariam and Adhanom want to make the “Darfur issue” in the Sudan and the “post-2007 election violence issue” in Kenya a dead issue.

    Hailemariam and Adhanom seem to conveniently forget (or lack the perspicuity) that one of the foremost causes of conflict in Africa is rooted in pre-election suppression of opposition parties and leaders, rigged elections and the refusal of incumbent leaders to accept elections outcomes or defeat. Inevitably, incumbent regimes who cannot win in a free and fair election almost always adopt a scorched earth policy against their opponents jailing, torturing and killing them. That happened in Ethiopia in 2005; in Kenya in 2007; in Zimbabwe in 2008; in Cote d’Ivoire in 201o; in the DR Congo in 2011 and in Mali in 2012 when a coup disrupted elections. There is indeed a need to balance justice with reconciliation; but first justice must be done without delay. Let Bashir, Kenyatta and Ruto go through their trial; and if they are convicted, they could be eligible for pardon, commutation of sentence or other alternatives.

    The “condescending” ICC: Africans just don’t get no respect!

    Adhanom asserted the ICC has ignored the African Union’s “active engagement in the resolution of the 2007 post-election violence in Kenya, and “scuttled” the work of the “mediation team established by the African Union composed of African Eminent Personalities.” The ICC and the U.N. Security Council have been so contemptuous of the AU that they have not even bothered to dignify AU’s simple requests with a response. “It is regrettable that our repeated call has fallen on deaf ears and our concerns have been completely ignored.” Specifically, the AU’s application to the U.N. Security council to defer the prosecution of Bashir, “has neither been heard nor acted upon.” The AU “has received no response to our request for a deferral of the ICC investigation and prosecutions of [Kenyatta and Ruto]”… In spite of Kenya’s full cooperation with the Court, it is unfortunate that the Court has neither been ready nor willing to even entertain simple requests made on technical issues of the proceedings…” To add insult to injury, Adhanom lamented, “The manner in which the Court has been operating particularly its unfair treatment of Africa and Africans leaves much to be desired. Far from promoting justice and reconciliation and contributing to the advancement of peace and stability in our continent, the Court has transformed itself into a political instrument targeting Africa and Africans.” Simply stated, Africans just don’t get no respect! He urged, “We should not allow the ICC to continue to treat Africa and Africans in a condescending manner.”

    Adhanom “doth protest too much”, to paraphrase Shakespeare. Perhaps Adhanom has not read the Rome Statute. The ICC’s jurisdiction under Article 5 is “limited to the most serious crimes of concern to the international community as a whole… and [covers only] the crime of genocide; crimes against humanity; war crimes [and] the crime of aggression.” The ICC has no power to function as a truth and reconciliation commission or a mediation service for reconciliation. Adhanom is asking the ICC to do something the ICC has absolutely no power (and if it did act, it would be acing ultra vires [beyond its legal powers]) whatsoever to do even if it wanted! Adhanom can badger the ICC until he turns blue in the face, but the ICC cannot become a truth and reconciliation commission. The U.N. Security Council is also limited; it cannot tell the ICC what to do. The ICC is not a kangaroo court which politicians can manipulate and intimidate. It is Adhanom who is “condescending” to the ICC and the Security Council by insisting that they buckle down to his naïve and benighted demands. If the Security Council has turned a deaf ear to Adhanom’s repeated pleas, it is because Adhanom is talking loud and saying nothing!

    Double talk on a double standard

    Hailemariam claimed, “The double standard that both the United Nations Security Council and ICC have displayed with regards to the African Union’s request for deferral of prosecution… for the last seven years… in a number of cases, has been particularly worrisome…” In his “closing remarks”, Adhanom observed: The AU has “rejected the double standard that the ICC is applying in dispensing international justice” and has “expressed our serious disappointment against the ICC and its selective approach vis a vis Africa”. Prosecution of Kenyatta and Ruto “in an international court infringes on the sovereignty of Kenya and undermines the progress achieved thus far in the country’s reconciliations and reform process.”

    It is remarkable how some African “leaders” could be so witless that they are unable to see glaring contradictions in their own positions. Hailemariam and Adhanom accuse the ICC and Security Council of a double standard but they are completely blinded to the duplicity of their own double standard by demanding a double standard of justice for African heads of states. When Hailemariam asks for deferral of prosecution for Bashir, Kenyatta and Ruto, he is asking that these suspects be brought to trial at some undetermined future time. But he is not demanding “deferred” prosecution for Joseph Kony, Bosco Ntganda or any of the others. How could one explain to Hailemariam and Adhanom that the ICC cannot establish one standard of justice for Bashir/Kenyatta and Ruto and another for Kony and Ntganda. The ICC cannot use two standards of justice, capish?!

    Since Hailemariam and Adhanom are so incensed and bent out of shape about the alleged double standard of justice meted out by the ICC and U.N. Security Council, how come they practice a double standard of justice in their own country? For instance, they have not prosecuted a single policeman, security official, party leader or regime official for any human rights violations. In fact, for over two decades, they have been practicing their own brand of double standard called “Just Us” justice. Let the truth speak for itself.

    The moment of truth has finally arrived!

    In his speech Hailemariam said, “Africa has and never will support impunity of leaders who willfully murder their own people.” Adhanom chimed in: The AU has “unwavering commitment to fighting impunity and promoting democracy, rule of law and good governance throughout the continent” and AU has “ taken concrete actions to uphold these values..”

    This is an amazing statement by “leaders” of a country that has sneeringly refused to sign the Rome Treaty since it opened for signature in 1999. Are they telling the truth about “taking concrete actions” in “fighting impunity and promoting democracy, rule of law and good governance throughout the continent? Let the facts speak for themselves!

    Following the 2005 parliamentary elections in Ethiopia, the ruling regime established an Inquiry Commission to look into the post-election violence that had occurred. The Commission also investigated disturbances in Kality prison where the regime keeps most of its political prisoners. The Commission examined 16,990 documents, and received testimony form 1,300 witnesses. Commission members visited prisons and hospitals, and interviewed members of the regime’s officialdom over several months. In the end, the Commission determined that the police shot and killed 193 persons and wounded 763 others on specific dates and in specific locations. It also documented that prison guards fired more than 1500 bullets into inmate housing units in Kality prison leaving 17 dead, and 53 severely wounded.

    Commission Chairman Judge Frehiwot Samuel noted: “Many people were killed arbitrarily. Old men were killed while in their homes, and children were also victims of the attack while playing in the garden.” Over 30,000 civilians were arrested without warrant and held in detention. By an 8-2 vote, the Commission made specific factual conclusions about the “disturbances”: 1) The persons killed or wounded during the violence were unarmed protesters. “There was not a single protester who was armed with a gun or a hand grenade (as reported by the government-controlled media that some of the protesters were armed with guns and bombs)”. 2) “No property was destroyed by the protesters.” 3) “The shots fired by government forces into crowds of protesters were not intended to disperse but to kill by targeting the head and chest of the protesters.” 4) There was no evidence that any security officers involved in the shootings were attacked or killed by the demonstrators: “Security forces which are alleged to be killed by demonstrators were not taken to autopsy, even there is no evidence of either photograph or death certificate showing the reason of death and couldn’t be produced for police as opposed to that of civilians.”

    There is a Certified List of 237 Killers in the Massacres of 2005. In 2008, a “think tank that met regularly at the Ethiopian Embassy in London” commissioned an “internal security study” to counter criticism by various international human rights organizations following the 2005 elections. In a report entitled “Modernizing Internal Security in Ethiopia”, counterterrorism expert Col. Michael Dewar, British Army (Rtd.) revealed some shocking facts about the federal police, detention facilities and riot control capabilities and procedures in Ethiopia. One of the most surprising facts revealed by Col. Dewars was the existence of a certified list of policemen involved in the 2005 post-election massacres. Col. Dewars stated in his report that “after three hours of one to one conversation”, Werkneh Gebeyehu, the Director General of the Ethiopian Federal Police, told him that “As a direct result of the 2005 riots, he [had] sacked 237 policemen.” These officials who have manifestly committed crimes against humanity have yet to be brought to justice in Ethiopia.

    Adhanom pontificated about “our principle of providing African solutions to African problems.” Some Ethiopian solution for an Ethiopian human rights problem!

    The massacre of the innocent demonstrators is the singular reason I got involved in Ethiopian and African human rights advocacy. For the past seven years, every single week without fail, I have, in one form or another argued and called for legal accountability for the policemen who pulled the trigger, the invisible hands that pulled the fingers of the policemen who pulled the trigger and the masterminds who orchestrated the whole bloody carnage in 2005. I shall continue to call for justice to those who were massacred in 2005.

    No justice no peace; no truth, no reconciliation

    Hailemariam and Adhanom waxed eloquent about justice and reconciliation. Their definition of reconciliation is giving African heads of state accused of crimes against humanity a get out of jail free card, at least a card that will keep them out of the ICC dock for an undetermined amount of time. It is easy to sloganeer about reconciliation; but genuine reconciliation is a coin with two sides. On the other side of the coin is truth. There can be no reconciliation without bringing out the truth in the open. The crimes committed against victims in secret must be brought into the light of truth so that the truth can set the victim and victimizer free. The truth allows the victim to reconcile with the victimizer by creating a bridge of compassion, forgiveness and contrition in their hearts. It allows the victims to excavate their hurt and hate from their hearts and begin to heal themselves and their victimizers. Reconciliation allows the victimizers to look at the evil buried deep in their hearts and minds and permanently purge it. The practice of reconciliation, as seen in South Africa and elsewhere in Latin America, allowed victims to face their torturers and jailers and through a confrontation of love (not hate, revenge or vengeance) both victim and victimizer put the past behind them and kept moving forward to future where such crimes will never be repeated. How can there be reconciliation when those accused of crimes against humanity are given “deferrals” of prosecutions or when there is a double standard of justice for the powerful in the palaces and the out of power in the bushes?

    Justice is like a train that is nearly always late.

    Lady Justice “is like a train that is nearly always late”, but she has finally arrived at her African destination with a scale in one hand and a sword in the other, and without her blindfold to see the atrocities that continue to be committed in Africa. A new dawn is rising over the darkness of war crimes, crimes against humanity and genocide in Africa. I am glad to see the scales of justice insignia of the International Criminal Court rising over the African horizon. I know the ICC’s achievements during its decade-long existence are modest. I also appreciate the growing pains of the ICC. I do not believe for a nano second that the ICC or the Office of the Prosecutor are racist institutions with double standards of justice for Africans and everyone else. I have not seen a scintilla of evidence to support the claims of ICC critics and detractors. Of course, the racism and double standard accusations are red herrings. The burden of proving the ICC and OTP are racists who have contempt for Africa and use a double standard to mistreat Africans is on those who make their allegations. All I can say is: Put up or shut up!

    No more AU brinksmanship by mass treaty-cide!

    The time to support the ICC is NOW!

    Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a practicing defense lawyer.

  • US prosecutor condemns Hague trials of Kenyan leaders

    David Crane says international criminal court prosecutors have ignored political realities and created a lose-lose situation

    Daniel Howden in Nairobi, Friday 18 October 2013 07.52 BST

    A former chief prosecutor of the international criminal court has condemned its cases against Kenya’s president and vice-president, warning that the indictments could damage the fledgling international justice system.

    David Crane, the US lawyer who built the case against Liberia’s former president Charles Taylor, said his successors at The Hague had ignored political realities in pursuing the Kenyan prosecution, which he said “could be the beginning of a long slide into irrelevance for international law”.

    Uluru Kenyatta, Kenya’s president, is due to stand trial next month at the ICC, the first time a sitting head of state will have done so. Along with his deputy, William Ruto, whose separate but related trial has already begun, Kenyatta is accused of masterminding the violence that killed at least 1,300 people in the wake of a disputed election at the turn of 2007-08.

    Last week the African Union passed a resolution calling for immunity for all serving African heads of state.

    “I would never have indicted or gotten involved in justice for the Kenyan tragedy,” said Crane, a former chief prosecutor of the special court for Sierra Leone, a precursor to the ICC. “It’s placed them in a situation where they are damned if they do or damned if they don’t.”

    The African Union has called on the Kenyan leaders not to attend hearings at The Hague until the UN security council, which oversees the ICC, has responded to its recent demands.

    France is working on a UN resolution that would defer the Kenyan cases for 12 months, according to a senior diplomat in the Kenyan capital, Nairobi.

    Human rights groups have said giving in to AU demands for immunity would set a terrible precedent that would encourage heads of state to trample constitutional term limits, cling to power and rig elections. “It’s become a lose-lose situation,” said Crane.

    Crane said the cases he built during three years of investigations in west Africa from 2002-05 had taken into account local politics as well as the law. “Politics is the bright red thread of modern international law, a successful prosecution must factor in the international stage.”

    After ad hoc tribunals dealt with the fallout from civil wars in the Balkans and west Africa, as well as the genocide in Rwanda, the ICC got a permanent home in the Netherlands and issued its first arrest warrants in 2005.

    Under the Argentinian lawyer Luis Moreno-Ocampo, the prosecutor’s office pursued high-profile African leaders, including Sudan’s Omar al-Bashir – who has ignored the warrant – and a number of alleged warlords in the Democratic Republic of the Congo.

    Crane said Moreno-Ocampo had a “political tin ear” and had been overly ambitious in his indictments.

    When Kenya came close to a civil war and as many as 400,000 people lost their homes after a contested election result in 2007, mediators brokered a deal under which a national tribunal was meant to be set up to try the guilty. The ICC stepped in as a court of last resort when the Kenyan parliament could not agree on a local alternative.

    Moreno-Ocampo became a celebrity in Kenya, with minibus taxis named after him, but his initial popularity waned, and this was exacerbated by his decision to name Kenyatta and Ruto, political rivals whose supporters had fought during the violence, among the indictees. The pair united in a “coalition of the accused” and won elections this year in a campaign that portrayed the ICC as a colonial throwback.

    Moreno-Ocampo was replaced last year as chief prosecutor by Gambia’s Fatou Bensouda.

    Crane said the ICC should have used the threat of its intervention to nudge for reform rather than launching prosecutions that the Kenyan elite would never support.

    “It’s a question of some justice versus no justice,” he said. “If it’s perceived that Kenyatta and Ruto have won then we’re thrown back to the pre-Taylor era in Africa.”

  • Why do Elites hate women in Kenya!

    Indeed Uhuru Kenyata&William Ruto Stage mananged Westgate Terrorist attack this was planned by NIS /Kdf/CIDs top chiefs to save (mothamaki(Kikuyu-aka-Gema Owners of Kenya)
    They also planned rigging Uhuruto replace Kibaki (to protect their ill-gotten Filthy wealth)
    Since kenyas independence its only two boig tribes that has been ruling this Huge Prison Camp called Kenya!Kikuyu&kalenjin dominant tribes: Remember Daniel Arap Moi (Uhuru Project) that failed miserably! Today Kikuyus &Kalenjins are in full-Control of the STATE-machinery.They plan/they Execute their dirty plans ,they scheme ,they destroyKill. asassinate, ..They indulge with all corrupt deals in Kenya name them from drug which is stored in military bases to state-House. etc but this time the ICC has both their balls ready to crash/clash them to powder.The Gambian Woman the hate has their balls in her huge strong hands,holding them tight!

  • The elephants the move as one The elephants the move as one So Africa should live as one So Africa should live as one I saw the elephants today Side up, side up Africa, side up side by side Side up, side up Africa, side up side by side Move up, move up Africa, move up, move up as one Move up, move up Africa, move up, move up as one I saw the elephants today I saw the elephants today I saw the elephants today And they were defending each other And they were defending each other

    Why can’t east, west, north and south Africa

    Why can’t east, west. North and south Africa

    Oh stand up as one, oh stand up as one

    Side up, side up Africa, side up side by side

    Side up, side up Africa, side up side by side

    Move up, move up Africa, move up, move up as one

    Move up, move up Africa, move up, move up as one

    I saw the elephants today

    The elephants, the elephants, the elephants

    The elephants, the elephants I saw the elephants today I saw the elephants today And they were defending each other And they were defending each other Why can’t east, west, north and south Africa Oh stand up as one Why can’t east, west, north and south Africa Oh stand up as one Side up, side up Africa, side up by side Move up, move up Africa, move up, move up as one I saw the elephants today

  • Kenya is a signatory of The Rome Statute!

    Breaking news from the ICC Hague Judges>Uhuru Must be present in Court from start to fuinish>that means the Gambian woman has tightens the squeezing both Uhuru Kenyata & Ruto balls(testicles) to almost crashing them Bensouda has very strong and masculine hands!Long live the ICC Defender & shield of worlds oppressed masses by tin-pot Dictators!
    From the same two judges, the third dissenting. Expect this to go the way Ruto’s has: request for leave to appeal, request for suspensive effect, etc.

    Dissenting opinion:

  • No press freedom in Ethiopia

    Human Rights Watch (Washington, DC)

    Ethiopia: Jailed Ethiopian Journalists Challenge Use of Terror Laws to Silence Dissent
    18 October 2013


    Photo: Doha Centre for Media Freedom

    Journalist Reeyot Alemu, currently serving a five-year jail term in Ethiopia, was awarded the Guillermo Cano World Press Freedom Prize for 2013.

    Two Ethiopian journalists imprisoned under Ethiopia’s anti-terror laws have appealed to the African Commission on Human and Peoples’ Rights arguing that their conviction and imprisonment for alleged terrorist activity violates their right to freedom of expression and to a fair trial.

    Veteran journalist and blogger Eskinder Nega and freelance journalist Reeyot Alemu were convicted of terrorist activity for articles criticising the Ethiopian government and accused of using their right to free speech as a cover for terrorist activity.

    Mr Nega and Ms Alemu are just two of many journalists imprisoned for voicing opposition since the Anti-Terrorism Proclamation was introduced in 2009. In 2011, more journalists went into exile from Ethiopia than from any other country. Those imprisoned face conditions of detention which fail to meet basic human rights standards, including the denial of the right to receive visitors. The UN High Commissioner for Human Rights, the African Commission, and a number of UN special rapporteurs have all criticised the use of the overly broad and vague provisions of the Anti –Terrorism Proclamation such as “encouraging terrorism” to imprison journalists, opposition party members and other dissenting voices.

    Both Mr Nega and Ms Alemu are award winning journalists and shared the Human Rights Watch Hellman-Hammett Award in 2012, awarded to journalists targeted for political persecution. Mr Nega has been working as a journalist since 1993. Prior to his most recent arrest in September 2011, he had been arrested on 7 previous occasions. He was sentenced to 18 years imprisonment in July 2012 for various offences under the Anti-Terrorism Proclamation. The UN Working Group on Arbitrary Detention recently found that Mr Nega’s ongoing detention violated international law. His articles call for peaceful opposition to the government and expressly denounce the use of violence.

    Ms Alemu writes on topics such as government policy and spending, the lack of an independent media in Ethiopia and the mistreatment of minorities. Her arrest in June 2011 occurred several days after she published an article criticising practices of Ethiopia’s ruling party. She was initially sentenced to 14 years imprisonment for offences under the Anti-Terrorism Proclamation, reduced to 5 years on appeal. Both journalists were reported to have spent time in solitary confinement. Mr Nega was also alleged to have been beaten and Ms Alemu was deprived of medical care following surgery 15 months ago.

    The appeal to the African Commission was filed on behalf of Mr Nega and Ms Alemu by MLDI’s senior legal counsel, Nani Jansen, Patrick Griffith of Freedom Now, and barrister Korieh Duodu.

    The appeal argues that the conviction and imprisonment of the journalists for terrorist activity was solely because of their criticism of the government and violates both their right to freedom of expression and their right to a fair trial. It also argues that the failure to provide medical care to Ms Alemu violates her right to health. The treatment of Mr Nega and Ms Alemu highlights the serious violations of human rights that are occurring in Ethiopia under the premise of restricting terrorist activity. In light of the widespread use of the Anti-Terrorism Proclamation to prosecute journalists and other dissenting voices, the journalists have asked the African Commission to refer their cases to the African Court on Human and Peoples’ Rights as part of a series of massive or serious violations of human rights.

    “We hope that the African Commission will recognise the serious nature of the violations of the rights of both these, and other, journalists in Ethiopia and refer the matter to the African Court. Critical comment on political matters should never be considered as supporting or encouraging terrorist activity” said MLDI’s senior legal counsel, Nani Jansen.

    Patrick Griffith of Freedom Now commented that “The continued detention of Mr Nega and Ms Alemu is a clear violation of their fundamental right to freedom of expression and has been widely condemned by the international community—they must be immediately released and allowed to return to their important work.”

    The African Commission on Human and Peoples’ Rights next meets in ordinary session is from 22nd October to 5th November in Banjul, the Republic of the Gambia.

  • Uhuru's conditional excusal

    International Criminal Court

    Original: English No.: ICC-01/09-02/11
    Date: 18 October 2013
    Before: Judge Kuniko Ozaki, Presiding Judge
    Judge Robert Fremr
    Judge Chile Eboe-Osuji


    Public Decision on Defence Request for Conditional Excusai from Continuous Presence at Trial

    In the circumstances, it is correct to conditionally grant the Defence request of the Chamber to excuse Uhuru Kenyatta from continuous presence at trial, in order to permit him to discharge his functions of state as the executive President of Kenya; while his trial proceeds, as it must do, in this Court.

    Mr Kenyatta is excused from continuous presence at other times during the trial. This excusal is strictly for purposes of accommodating the discharge of his duties as the President of Kenya. The resulting absence from the trial must therefore always be and seen to be directed towards performance of those duties of state.

    The decision was adopted by majority; however Presiding Judge Kuniko Ozaki dissented.

    The majority however, required the president to be physical present for the entirety of the following sessions: the opening and closing statements of all parties and participants, hearings when victims present their views and concerns in person, the delivery of judgement in his case and any other attendance ordered by the Chamber.

    Uhuru is also required to be at The Hague during sentencing hearings, the delivery of sentencing, the entirety of victim impact hearings, as well as reparation hearings if the case gets to such levels.

    Judge Chile Eboe-Osuji appended a separate concurring opinion, and Presiding Judge Kuniko Ozaki appended a dissenting opinion.

    26. The Kenyatta Defence submitted that, as Head of State, the need for such an order is even greater in the case of Mr Kenyatta than was the case for Mr Ruto, as the office ‘inherently carries greater responsibility’.

    41. Moreover, it was argued that the granting of an order in the form sought would be contrary to the interests of justice because it could ‘invite a flood of excusal requests’ as many of the accused likely to appear before this Court could present a reason why they have functions that would justify non-participation. It was submitted that it would also compromise the ‘seriousness and integrity’ of the proceedings which the accused’s presence serves to demonstrate. The Prosecution argued that the presence of the accused also assists the Chamber in determining the veracity of the evidence by providing an opportunity for the Chamber to observe the ‘demeanour and conduct’ of the accused during its presentation.

    56. As a preliminary matter, the Chamber notes that in recent filings, including the one currently under consideration, the Kenyatta Defence refers to Mr Kenyatta and their team repeatedly by using his title as President. In the Ruto Decision, the Trial Chamber had occasion to issue the following caveat:

    It must be clearly stressed from the outset that the Deputy President of Kenya as such is not on trial before this Chamber. The accused person over whom the Chamber is exercising jurisdiction is William Samoei Ruto. He is being tried in his individual capacity for allegations of crimes made against him personally. It may also be noted that the charges against him were laid and confirmed and the case transferred to the Trial Chamber for his trial—and indeed an initial date for the trial was once set—before he was elected into office as Deputy President of Kenya. Although Mr Ruto has come into that office in the meantime, while his trial remained pending, let it not be understood that the Deputy President of Kenya is on trial in that capacity. There is a material difference in the law in this regard.

    57. Precisely the same consideration applies here. These proceedings are against Mr Kenyatta in his personal capacity and not in his capacity as President. In the circumstances, the Chamber does not consider the use of this title appropriate in filings in this case. The Chamber therefore directs the Kenyatta Defence to refrain from including Mr Kenyatta’s official title in its filings.

    58. The Majority of the Chamber will now consider the urge of both the Prosecution and LRV for a deferral of this decision pending the Appeals Chamber’s determination of the Prosecution appeal against the Ruto Decision, considering that the decision of the Appeals Chamber may be dispositive of the Kenyatta request. This urge for deferral is supposedly motivated by concerns of judicial economy.

    It should be said from the outset that the entirety of the material reasoning employed in that decision is fully applicable to the current request of Mr Kenyatta, with necessary variations. An important point of variation, however, is that Mr Kenyatta is the President. That is all the more reason that the Ruto relief should apply to Mr Kenyatta in a stronger way.

    115. Fundamental to the finding in this case is the understanding that the dignity or status of Mr Kenyatta as President of Kenya is not what is at issue in holding that there are exceptional circumstances that justify his conditional excusal from continuous presence at trial. Rather, the finding is based on the attendant obligations and responsibilities of such an office. In certain limited circumstances, other accused may also satisfy this narrow test, were they to demonstrate, for example, skills of exceptional rarity or significant public service responsibilities the immediate application of which may compete with the requirements of the general rule of presence at trial.

    115. Fundamental to the finding in this case is the understanding that the dignity or status of Mr Kenyatta as President of Kenya is not what is at issue in holding that there are exceptional circumstances that justify his conditional excusai from continuous presence at trial. Rather, the finding is based on the attendant obligations and responsibilities of such an office. In certain limited circumstances, other accused may also satisfy this narrow test, were they to demonstrate, for example, skills of exceptional rarity or significant public service responsibilities the immediate application of which may compete with the requirements of the general rule of presence at trial.

    122. In this regard it is important that Mr Kenyatta should make every effort to ensure that victims and witnesses are not intimidated or interfered with. Desirable actions in that connection should include impressing upon his supporters— regardless of his own awareness of their actual links to him—the need to refrain from any conduct or utterance that may reasonably create intimidating or harassing atmosphere for victims and witnesses. Salutary actions in that regard may have obvious benefits in mitigation of sentence, were the Prosecution to succeed in establishing guilt in the end at the requisite standard of proof. But the hope of mitigation of sentence need not be the only motivation for taking effective measures in good faith to ensure that witnesses and victims are not intimidated, harassed or interfered with. It is also the right thing to do in the name of the rule of law and the modem democracy that Kenya is and which Mr Kenyatta is obligated to play a principal part in guiding as the President.

    Click to access doc1667182.pdf

  • Kenya is a signatory of The Rome Statute!

    Generals in Uhuru’s Army(Police KFD GSU(Recce rapists&alcoholics etc. These corrupt security forces ,robbed /banks /jewel shops/expensive watches /Gold/Diamonds/Drunk free whisky/expensive wines/ate free food from empty restaurangs/robbed dead bodies of their values through emptying their pockets some raped dead or injured white ladies /Asians /and these idiots didn’t realice the CCTVs were recording everything these soldiers and police were doing>But the corrupt Uhuru Kenyattas corrupt Generals deleted and cut video clips from westgate Videos >Something must be done by Western leaders becouse to allow such well documented heinous crime committed by men in uniform under their Commander in chief is evil.The corrup Kenya selected Parliament Commitee under Kamama has already cleared military and given them .a clean bill of health. >>><<<<'CORRUPTION AT THE HEART OF ALL OUR FAILURES'

    To the outrage of many, it would seem that first responders took time to rob the high-class stores in the mall, consume a vast quantity of alcohol and even relieve the dead and dying of their blood soaked wallets and watches. This cold heartedness and corruption was utterly shocking.

    Of all Kenya’s institutions the military has always been among the most respected by the middle class. Attitudes towards them in those parts of Kenya where they have conducted counter insurgency operations, however, are far more negative.

    When it was announced in September 2012 that the army was being deployed to stop the violence in Tana River district many in the local community fled!

    That said, however, our military has historically avoided dabbling in politics and retained an image of professionalism, efficiency and probity. Debating regional geopolitics with a senior Kenyan army officer is like discussing the issue with a PHd. candidate in strategic studies.

    This reputation took a severe knock after the Westgate crisis when in hindsight things not only seemed to have fallen apart when the army arrived but reports are now replete of soldiers raiding the banks and stores in the Mall.

    Then the highly respected, Lt. Gen. (rtd) Humphrey Njoroge, took the very unusual step of writing in a local daily essentially, gracefully and carefully, criticising his own former colleagues in a piece titled ‘The military lost the plot in Westgate siege’.

    The article said that, “As a result Lt-Gen Njoroge worries deeply about two things regarding terrorism in Kenya. One is corruption, the other idle and highly trained former soldiers and policemen.

  • Judge Ozaki's dissent

    1. I agree with the portion of the disposition directing the Defence to refrain from using Mr Kenyatta’s official title in its filings in this case.

    2. I respectfully disagree with the decision of the Majority to grant the Defence’s request for the accused to be conditionally excused from continuous presence at trial (‘Request’).

    5. Furthermore, I find merit in the argument of the Prosecution and the Legal Representative that it would be appropriate to wait for the Appeals Chamber ruling on the appeal against the decision of the majority in the Ruto case prior to determining the present Request as the former may well be dispositive of the latter. In my view, in order to avoid unnecessary further appeals litigation, it would indeed be preferable to have clarity from the Appeals Chamber as to the correct interpretation of the relevant provisions of the Statute prior to rendering a decision on the Request.

    12. I cannot accept the Majority view that the Statute’s aim of ending impunity compels a contrary interpretation of Article 63(1) of the Statute whereby the Chamber may in its discretion waive the requirement for an accused, who is voluntarily cooperating with the Court and not subject to arrest, to attend substantially all of the trial. ^° In particular I am not convinced by what appears to be the underlying rationale of the Majority in arriving at this view, which is that this level of discretion must be recognised to prevent a future hypothetical scenario of a trial being indefinitely stalled if an accused absconds after an initial appearance.

    14. I further note that I find no conflict between the presumption of innocence and the obligation on an accused to attend trial. I do not agree with the Majority that the requirement of an accused’s presence at trial is only a question of judicial control. In my view, the fairness and integrity of the proceedings are also implicated.

    21. Finally, it is necessary to note that I find portions of the Majority decision reasoning to be repetitive, irrelevant to the question before the Chamber (including the use of selective quotations from various authorities) and/or, in some cases, incorrect. In my opinion, the Chamber should confine itself to consideration of the specific legal and/or factual matters before it. Additionally, while there may be a place for proper policy considerations in the context of legal decision making, it is important to make a distinction between such proper policy considerations and the realpolitik of the day. Therefore, although I have not individually identified above all elements of the Majority decision with which I disagree, such silence should not be interpreted as representing agreement.

    22.For the foregoing reasons, without prejudice to subsequent specific requests for excusai being raised for consideration on a case by case basis, I would not have granted either the primary or alternative relief sought in the Request.

  • Kenya is a signatory of The Rome Statute!

    Generals in Uhuru’s Army(Police KFD GSU(Recce rapists&alcoholics etc.Top Generals in Kenya are Above the Law !There is nobody who can question top military corrupt Generals in Criminal Uhuru Kenyatta Armed forces! These corrupt security forces ,robbed /banks /jewel shops/expensive watches /Gold/Diamonds/Drunk free whisky/expensive wines/ate free food from empty restaurangs/robbed dead bodies of their values through emptying their pockets some raped dead or injured white ladies /Asians /and these idiots didn’t realice the CCTVs were recording everything these soldiers and police were doing>But the corrupt Uhuru Kenyattas corrupt Generals deleted and cut video clips from westgate Videos >Something must be done by Western leaders becouse to allow such well documented heinous crime committed by men in uniform under their Commander in chief is evil.The corrup Kenya selected Parliament Commitee under Kamama has already cleared military and given them .a clean bill of health. >>><<<<'CORRUPTION AT THE HEART OF ALL OUR FAILURES'

    To the outrage of many, it would seem that first responders took time to rob the high-class stores in the mall, consume a vast quantity of alcohol and even relieve the dead and dying of their blood soaked wallets and watches. This cold heartedness and corruption was utterly shocking.

    Of all Kenya’s institutions the military has always been among the most respected by the middle class. Attitudes towards them in those parts of Kenya where they have conducted counter insurgency operations, however, are far more negative.

    When it was announced in September 2012 that the army was being deployed to stop the violence in Tana River district many in the local community fled!

    That said, however, our military has historically avoided dabbling in politics and retained an image of professionalism, efficiency and probity. Debating regional geopolitics with a senior Kenyan army officer is like discussing the issue with a PHd. candidate in strategic studies.

    This reputation took a severe knock after the Westgate crisis when in hindsight things not only seemed to have fallen apart when the army arrived but reports are now replete of soldiers raiding the banks and stores in the Mall.

    Then the highly respected, Lt. Gen. (rtd) Humphrey Njoroge, took the very unusual step of writing in a local daily essentially, gracefully and carefully, criticising his own former colleagues in a piece titled ‘The military lost the plot in Westgate siege’.

    The article said that, “As a result Lt-Gen Njoroge worries deeply about two things regarding terrorism in Kenya. One is corruption, the other idle and highly trained former soldiers and policemen.

  • who will punish these Elite thugs ,robbers& Rapists
  • Will This Break The Uhuru/Ruto Sham Marriage?

    Look at this another Kikuyu who is Squeezing Deputy President Ruto (Testicles)…..Nancy Gitau>>>power yet keeping Ruto at a safe distance away from the helm. If I were Ruto I would face such green snakes head-on…demanding that Uhuru starts by firing them.

    Ruto should DEMAND that Uhuru fires Nancy Gitau, Mutea Iringo, et al., if there is sincerity within the so called Uhuruto association. Anyway, that’s their own business in the house that’s full of deceit called Jubilee.

    The likes of Nancy Gitau are the overpaid staffers pilfering taxpayer resources to the tune of tens of millions of shillings annually…working against the interest of the same people. It is the height of folly to suddenly play the anti- imperialist card when the same people have been feeding Nancy Gitau for 17 years at USAID.

    There is absolutely no difference between the journalist with an ICC warrant Barasa and Nancy Gitau. They were both well-paid intermediaries of these very institutions they are today criticizing. Greedy turncoats with zero credibility, folks who will not wink an eye figuratively sleeping with the next highest bidder. Bure kabisa!

  • Uhuru absurdity

    this is what the ICC indictee and suspected murderer and mungiki leader said at Mashujaa Day:

    “Our forefathers rejected colonialism and imperial domination in their time. We must honour their legacy, and stay true to our heritage, by rejecting all forms of domination and manipulation in our time. Let us confront without flinching those external forces seeking to thwart our collective aspirations. They may be powerful and rich, but so were the colonists. They may disrespect and even hate us; we have defeated their ilk before. The struggle to defend our independence is a daily calling for all Kenyans, and all the people of Africa.”

    Our problems are based on the thievery by people liKE Jomo Kenyatta and his ilk, the Kikuyu elite of Central Kenya who have fu£ked up Kenya for 50 years by never cleaning up the deep dirt left by colonialists. They promoted neo-colonialism (ukoloni mamboleo) and took shambas from fellow kikuyu peasants and kicked them out to Rift Valley. Uhuru is a direct beneficiary of Jomo’s corrupt thuggery that ruthlessly dominated Kenya for 15 years while he was president. Uhuru is wasting time asking Kenyans to defend themselves from “external forces”, yet he and the elite ruling class who are the “internal forces” which threaten and exploit Kenyans daily through landgrabbing, corruption and other evil deeds you may think about.

    Here goes the indictee again: “My Government is doing everything in its power to transform our society to enable every individual actualize their full potential. We will wholeheartedly observe our constitutional responsibility to promote national unity, eliminate all forms of discrimination and marginalization. Already, we have made important strides in this regard through equitable appointments in the Cabinet and Public service. We have also resettled all internally displaced persons and are doing all we can to enable them integrate back into society. Most importantly, we have provided the opportunity for youth, women, and persons living with disability to thrive as entrepreneurs. I call upon all leaders and wananchi across the country to promote national cohesion, both in word and in deed.”

    By recycling Ngilu the corrupt witch, Balala the clueless and Kazungu Kambi the semi-illiterate back into the Cabinet, where are the equitable appointments? More Kikuyus have filled prominent public service posts since September when Ruto the deputy indictee, began to attend his ICC trial.

    Uhuru owes his presidency to Francis Kimemia who together with Major General Michael Gichangi (NIS), Major General Julius Waweru Karangi (KDF)and the C.I.D. Director Muhoro Ndegwa rigged Uhuru Kenyatta to the presidency.

    President Kenyatta has appointed a committee that will look into issues of Somali refugee camps. The latest Kikuyu appointees are:
    1. Chairman- Daniel Njuguna Waireri
    2. Vice chairlady- Joice Wanja Mburu
    3. Joint Secretaries: Wamuyu Mang’ondu, Gladys Njoki Muhia, Nyokabi Githiora, Charles Karanja Thingira.
    4. Members- Elizabeth Nyaguthii, Stephen Kiraithe, Athanas Gichuki Mwathe, Christine Agatha Waitherero, Hosea Kimkung Maiyo.
    5. Research team: Dr Githinji wa Muoka , James Lee Mukora

    A close friend to Ruto was heard saying that the Kalenjin society was secretly pleased about the appointments as it clearly shows that the Kikuyu are the ones in charge and are the ones that bring acrimony and cause all the wars in the country.

    1. Prof Ruthie Rono was REPLACED by Rose Makena in Hague
    2. Elkanah Odembo was REPLACED by Jean Kamau in Washington
    3. Wenwa Akinyi was REPLCED by Kevin Thuo is Los Angeles
    4. Simon Nabukwesi was REPLACED by Ann Mbugua in Canada
    5. Eva Oduor REPLACED by Charles Gichahi in KEBS

    1. Nancy Gitau – Chief Political Advisor
    2. Joseph Kinyua – Chief of Staff and Head of the Civil Service
    3. Arthur Igeria – Head of the Nairobi Centre for International Arbitration Board
    4. Mutahi Ngunyi – Senior Political Advisor
    5. John Mututho – Chairman NACADA
    6. Lee Kinyanjui – Chairman National Transport Authority.
    7. Kiragu wa Magonchi – Chairman Teachers’ Service Commission.

    By Antony Gitonga

    NAIVASHA, KENYA: Internally Displaced Persons (IDPs) who had been resettled to Laikipia have now returned to the Mai Mahiu Camps barely a month after the Government closed down the IDP settlement.

    The IDPs, many of whom are victims of the 2007-2008 post poll violence, told of their misery saying that they were dumped in various points and abandoned by the government officers.

    Addressing the press in Mai Mahiu, the IDPs from Amani, Vumilia Narok and Maono camps said that the Government was eager to get rid of them.

    According to Julia Njeri, they were transported to the area in June 2013 and left in the wilderness. The mother of four said that officers from the Department of Special Programmes never delivered the construction materials they had promised to issue.

    “We were left without food and water in the middle of wildness. Up to now we don’t know where our land is,” she said.

    She added that there were no schools, trading centers or hospitals in the area. The absence of these basic facilities negatively affected their lives, she said.

    The sentiments were echoed by Zipporah Wanja who said that over 70 families had returned to Mai Mahiu where they had sought refuge after the post-election violence

  • Uhuru and his supporters want the west to go away so that they can manipulate all of us. When Uhuru talks about Kenya he is only speaking for Kikuyus and maybe some Kalenjins. Uhuru is surrounded by Kikuyus everyday and his perception of Kenya is limited to the kikuyu tribe. Uhuru is for all practical purposes a kikuyu president and not a Kenyan president. Kalenjins are just house niggers but they sometimes think they own the house. It is said that during slavery when the master had a cold, the house nigger would say, “we are having a cold today”. The reality is that the field niggers in Kenya need the West because if Uhuru manages to send the west away and civil society groups, the conditions in the plantation will became unbearable. The reason why Kikuyus hate the West and civil society members is because they want to implement a very severe form of slavary akin to apartheid in South Africa where the kikuyus are on top of the Food chain. In order to do that they want to make sure that the slave tribes do not have any avenue for complaining. Somebody said that the the slaved tribes should go to court. Good luck with that because nobody wants to face the Kikuyu mafia with their gazzillion dollars in court where the judges rule for the highest bidder and the loser has to pay the other side cost of litigation.

  • Uhuru's supporter is torturer

    Human Rights Watch


    Ethiopia: Torture in the heart of Addis, even as leaders gather in gleaming AU building [1]


    Laetitia Bader

    Published in:
    The East African [2]
    October 21, 2013

    Many journalists and diplomats who attend events in Addis Ababa’s gleaming new African Union building are probably unaware that it rests on the site of one of Ethiopia’s most notorious prisons. While that prison was torn down in 2007, its legacy of torture and abuse continues today at the heart of the capital.

    Over the past year, I have spoken to dozens of people who were held in a detention centre called Maekelawi in central Addis. They described dire conditions and a range of abusive interrogation methods to extract information and confessions.

    Since 2011, scores of high-profile individuals have been detained in Maekelawi under Ethiopia’s draconian anti-terrorism law, including journalists and opposition politicians, and held for months under the law’s lengthy pre-charge detention period as their “cases” are prepared for trial.

    “Getachew,” a 22-year-old ethnic Oromo, was snatched from his university dorm, driven hundreds of kilometres to Addis Ababa, and locked up for eight months in Maekelawi. His parents were never informed of his whereabouts; he was never charged or given access to a lawyer; and never appeared before court. He was ultimately released on condition that he would work for the government.

    Like Getachew, many of the people detained in Maekelawi over the past decade are political prisoners — arrested because of their ethnicity, their real or perceived political opinions and actions, or journalism work. Voicing peaceful dissent or criticism of government policy is increasingly risky.

    In a new report, ‘They Want a Confession’: Torture and Ill-Treatment in Ethiopia’s Maekelawi Police Station, Human Rights Watch documents how the police who run Maekelawi have tortured and ill-treated detainees during investigations. Former detainees held in the facility since 2010 described how investigators slapped, kicked, and beat them with batons and gun butts. Some were held in painful stress positions for hours upon end.

    Some are held in solitary confinement for days or months. Getachew said he was held alone and shackled for five months: “When I wanted to stand up it was hard,” he told me. “I had to use my head, legs, and the walls to stand up.”

    Those held in Maekelawi’s two worst detention blocks, nicknamed by residents Chalama Bet [dark house] and Tawla Bet [wooden house], described particularly dire conditions.

    To make matters worse, investigators use access to basic facilities and needs to punish or reward detainees. Even access to the toilet can depend on the whim of the police, as Getachew explained: “I was only allowed to use the toilet once a day, although after two or three months, I was allowed twice… They want to get something, and either they get some evidence or they don’t.”

    Access to daylight is also restricted; one person said that he was taken outside for just a few minutes three times in 42 days in the dark cells. Several former Chalama Bet detainees complained of lasting vision problems.

    Detainees have also been denied access to their families and legal counsel, particularly those detained on politically motivated charges.

    Former detainees described being forced, often while being verbally abused and beaten, to sign statements and confessions for crimes they did not commit. Sometimes the confessions are presented in court as evidence or used to put pressure on those released to support the government and ruling party, as in Getachew’s case.

    Most recently, the prosecution submitted statements gathered in Maekelawi from prominent members of the country’s Muslim community who were charged under the anti-terrorism law in 2012 for organising peaceful protests. There is credible information that several of the defendants were mistreated in Maekelawi, making their statements questionable.

    The fate of those passing through Maekelawi’s gates is largely unknown to the outside world. Tackling the regular abuses of the rights of political prisoners’ right in the heart of the capital requires first acknowledging the violations and then making a commitment to address the culture of impunity among security forces.

    Ethiopia’s leaders should publicly state that torture and other ill treatment is prohibited, and should take concrete steps to hold to account those found responsible for these abuses.

    Most important, the Ethiopian government should ensure that no one is ever arrested for exercising their basic rights, including by peacefully expressing their political opinions.

    That means urgently overhauling Ethiopia’s draconian civil society and counter-terrorism laws. But change is unlikely to happen unless key regional actors such as the African Union, the African Commission on Human Rights Peoples’ Rights, and Ethiopia’s foreign donors make their concerns known.

    Turning a blind eye to the abuses in the centre of Addis Ababa should no longer be an option.

    Laetitia Bader is an Africa researcher at Human Rights Watch..

  • Black and white justice


    Last week a majority of International Criminal Court judges ruled that Kenyan President Uhuru Kenyatta need not be present for much of his own trial for crimes against humanity, but that he must be present during the opening and closing statements, and victims’ testimony. If he’s found guilty, they say he must also attend sentencing hearings and the delivery of sentencing, at which point he would presumably be taken into custody, and Kenya would be left to find a new president.

    Kenyatta says he’s too busy, as Kenya’s elected president, to attend his trial at the International Criminal Court in the Hague, and the African Union, in their recent gathering in Addis Abbaba, Ethiopia, passed a resolution that, as a sitting head of state, he shouldn’t be indicted for war crimes, crimes against humanity, and/or genocide. The court indicted Kenyatta in March 2011, alleging that he organized violence rising to the level of crimes against humanity, after his party lost the Kenyan 2007-2008 election. He was nevertheless elected president five years after the election, in April 2013, and some commentators even suggested that the ICC had given his campaign a boost, because many Kenyans perceive the court as a racist, imperial institution that indicts and prosecutes only Africans, despite an abundance of Western leaders that much of the world considers guilty of war crimes, crimes against humanity, and/or genocide.

    Kenya, however, ratified the treaty that created the court, so Kenyatta’s strategy appears to be withdrawing his country from the treaty and the court’s jurisdiction before he can be convicted. Kenyatta’s rival, former Kenyan Prime Minister Raul Odinga, who is favored by the U.S., said he didn’t know how Kenyatta could run the country via SKYPE from the Hague, but that problem seems to have been solved.

    Sudan’s President Omar Hassan al-Bashir was the first sitting president to be indicted by the court, Kenyatta the second, but Sudan hasn’t ratified the treaty that created the court or accepted its jurisdiction. President Al-Bashir has avoided arrest and extradition, in part due to the cooperation of other African heads of state, who have an obvious vested interest in not arresting him. During the UN General Assembly, he threatened to fly into New York City to attend, putting the U.S. in the awkward position of arresting him in accordance with a treaty that the U.S. refuses to ratify, as he does, and then extraditing him to a court whose jurisdiction the U.S. refuses to accept, as he does. The U.S. seems to prefer leaving organizations like Human Rights Watch and Amnesty International to call for Al-Bashir’s extradition, even though they also call on the U.S. to accept the court’s jurisdiction.

    Black Agenda Report Editor Glen Ford, like many other critics of the court, said, in a radio broadcast editorial, that Kenyatta’s indictment is another example of the U.S. using the International Criminal Court as an imperial tool. “It is a travesty of justice that the ICC only indicts Africans, but even more importantly, the International Criminal Court also only indicts those politicians that get on the wrong side of the United States and the former colonial powers in Africa. The ICC is a tool of U.S. foreign policy.” Some say that the U.S. would like to see President Kenyatta convicted and locked up because he prefers to do business with China, and he did, in August 2013, sign deals worth five billion U.S. dollars with Chinese Premier Xi Jinping, to build a railway line and an energy project, and improve wildlife protection. And a Christian Science Monitor contributor recently said that Kenya’s oil reserves could soar past even Uganda’s.

    Archbishop Desmond Tutu, writing in the New York Times, said that African heads of state are effectively looking for a license to kill, main and oppress their own people by withdrawing from the court. Black Agenda Report Editor Glen Ford seems to agree, but to place more importance on the hypocrisy of U.S. collaboration with the very same African heads of state. “And here lies the greatest irony. The very nations that most oppose the ICC have the blood of millions on their hands. Rwanda and Uganda are principally responsible for the death of six million Congolese over the past 17 years, an ongoing genocide armed and financed by the United States and Britain. The Ethiopian regime’s brutality towards its Somali and Oromo ethnic groups has also been described as genocidal. But because the United States is also deeply complicit in these crimes, there is no threat of prosecution by the International Criminal Court.”

    African scholars writing in the Pambazuka News and Black Star News have agreed with Tutu, arguing that despite the court’s obvious bias and imperfection, the threat of indictment and conviction serves to restrain the violence of African strongmen. And, that instead of rejecting the court out of hand, dissidents should demand that it live up to its stated ideals and all nations accept its jurisdiction.

    I have reported on the U.S. and its allies’ hypocritical use and abuse of the ICC for years, while following events on the African continent, and I could not agree more with Glen Ford. But, what will be the real world consequence of African nations removing themselves, or their heads of state, from the court’s jurisdiction? That I can’t answer, so, I’m still listening to everyone with a stake in this. Perhaps Glen Ford, who seems to have thought it through, will also propose a way forward.

  • AU should leave UN too

    AU Should Quit The United Nations Too
    Wednesday, October 23, 2013 – 00:00 — BY OKECH KENDO

    Sovereignty-minded Kenyans, who are mainly politicians, may soon be calling for the country’s withdrawal from the United Nations, which sponsors the bully of Africa’s presidents. But rather than confront the International Criminal Court on account of its constitution, defenders of Kenya’s ‘sovereignty’ have taken the battle to the United Nations Security Council, through the African Union. They want the Security Council to defer the crimes against humanity cases facing President Uhuru Kenyatta and Deputy President William Ruto. If the deferral is not granted by November 12, when the President’s case begin at The Hague, the AU would ask Its members to disown the Rome Statute, which creates the ICC.

    The pullout is calculated to erode further the legitimacy of the court since many of its subscribers are African countries. Critics say the ICC prosecutes only African leaders, forgetting the continent is the home of impunity, with institutions that have been largely unwilling and unable to deliver justice to those who need it most. But even with this knowledge the power elite have declared war on international justice. MPs and Senators loyal to the indictees of The Netherlands-based court have opened a battle front whose clarion call seems to be, you are either for us or against us. And any international institution which is seen to be against us must be racist, neocolonial, anti-African, and an enemy of democracy. Thus, what began as personal challenges for the three Kenyan indictees – Uhuru, Ruto and Sang – has taken a continental hue. ICC, the court of last resort, has been declared a monster that destroys African leaders. Never mind that this institution is the last front when local institutions fail.

    They failed when victims of 2007 post-election violence needed justice most. The ICC, which is ‘persecuting’ our democratically elected President and Deputy President, is the anti-impunity arm of the Security Council, whose sponsor is the the United Nations. A former United Nation’s Secretary General Kofi Annan, whose meditation ended post-election violence, has been de-africanised because he lives in Switzerland. Foreign Affairs Cabinet Secretary Amina Mohammed claims the Ghanaian is not qualified to speak for Africa on respecting the ICC because his Swiss identity has stolen his continental sensitivities. By sponsoring an anti-Kenya and anti-African institution like the ICC, the United Nations is said to have shown disrespect for Africans and Africa, where it draws about a third of its members.

    The battle against the ICC has been escalated to the African Union, a membership organization of African countries, to help save Kenya from the stranglehold of the so-called neocolonial West. A coalition of African countries – Ethiopia, Uganda, Rwanda and others – have heard the cries of local sovereignists. They are lobbying the Security Council to postpone the cases against President Kenyatta and Deputy President Ruto until the end of their executive duties. They want these leaders to be prosecuted after they leave office, probably 20 years from now. Two decades because President Uhuru has booked Ruto’s support for a second term in the 2017 General Election. He has publicly promised to support the Deputy President as his successor in the 2022 General Election. If they win, the AU would still ask the ICC to keep off Ruto because he would be president. If Ruto goes for a second term in the 2027 General Election, their cases would remain suspended until after 2032, when the Jubilee twins are expected to conclude their presidential politics.

    The ICC’s crime is its failure to read the signs of the times. This alien institution, in the thinking of a section of Africa’s power elite, is treasonously continuing with the crimes against humanity cases, which were planted on the country’s top executives by neocolonialists. The court is said to be racist because it does not respect the changed status of its victims. It’s still treating them as ordinary accused rather than democratically elected leaders. To be fair, this court has been friendly. It has allowed the suspects Uhuru, Ruto and Joshua Sang to attend court from outside. Last week it allowed President Kenyatta to attend only special sessions of the court, to allow him time to execute his executive duties.

    Ordinarily, the accused would be in custody under the excuse they could interfere with prosecution witnesses. The court is now being asked to defer the cases. If it does, it could be asked to dismiss the cases now that Kenyans have reconciled. But the offending Rome Statute tells us that the cases would continue even if Kenya disowns the ICC. By the outrage, the sovereignists are merely trying to run after bolting horses. St Francis of Assisi’s serenity prayer, ‘God grant me the serenity to accept things I cannot change, the courage to change things I can, and the wisdom to know the difference,” is what ICC critics need to understand the folly of running after a train that long left the station.

  • ICC double standards

    Kenyatta Decision: A Case of Double Standards?

    “Mr. Kenyatta is excused from continuous presence at other times during the trial. This excusal is strictly for purposes of accommodating the discharge of his duties as the President of Kenya”. With these words the ICC trial Chamber in the case The Prosecutor v Uhuru Muigai Kenyatta made one of the most significant decisions regarding the trial of senior state officers. The court was faced with an unprecedented situation: the leader of a country is, for the first time, due to stand trial before an international tribunal on charges of having committed war crimes. In anticipation of this trial, Kenyatta filed an application seeking his non attendance in some or all of the hearing sessions. In lieu of this, Kenyatta sought that his attendance in court through video link be taken as proper attendance. The main grounds for the application were simply that his high office of president required his presence within the country’s borders and he would not be able to discharge his constitutional duties while in court at the Hague. The prosecution however objected to this application on the grounds that the Rome Statute does not offer any special treatment to any accused person, irrespective of their social status. Further, that Article 63(1) of the Rome Statute made it mandatory for all the accused persons to be present during the trial. The trial court’s majority decision however held that the court had the discretion to allow the trial to proceed in the absence of the accused person and proceeded to exempt Kenyatta’s personal presence from all but a few of the sessions during his trial[1].

    This decision however can be criticized on certain important points. First, it is not clear how the court was able to allocate itself the power to exercise its discretion where the Rome Statute did not confer such discretion to it. Indeed, a plain reading of Article 63(1) will reveal its mandatory and unequivocal provisions[2]. Perhaps this is the bigger problem with the decision. The decision will, in turn, bring into doubt other mandatory provisions of the Statute. The rules of legal interpretation require the courts to give words their ordinary interpretation where they are unequivocal. That is what the court should have done.

    Secondly, the court failed to consider that, although it was impractical for Kenyatta to fulfill his constitutional duties while he was at the Hague, the Kenyan Deputy President’s trial was not being heard simultaneously with that of the President. This means that the Deputy President (who is also on trial at the ICC)[3] would be available to take over most of the Presidential functions in Kenyatta’s absence. Indeed the Kenyan constitution envisages such a situation when it provides that the Deputy President “shall deputise for the President in the execution of the President’s functions”[4]. The constitution further provides that “when the President is absent or is temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President”[5]. Thus the presidency, with the personal presence of the Deputy President in Kenya, would still be able to fulfill its obligations to the country. Further, there would be no crisis as alluded to by some[6].

    Third, the court failed to consider the other option open whenever a leader cannot fulfill his public obligations due to personal concerns: resignation. Though admittedly a harsh and severe option it is a feasible option in such circumstances. Kenyatta, as it has often been repeated, successfully ran for election in the full knowledge that he had a pending court case at the ICC. Thus, it seems, it should have been him and not the court, to bend over backwards to accommodate the court.

    Fourth, the court’s decision would always be seen as yielding to the hardline position of the African nations. This will portray it as a political institution that is guided by the day to day political events rather than the hard provisions of the law where it ought to hide’. Such concern with its image, especially in the eyes of the African states, rather than the hard provisions of the law seem to have been inferred by the concurring separate opinion of Judge Chile Eboe-Osuji[7]. The judge states, for example, that “failure to grant the relief will have a negative impact on the image of the Court”[8]. The judge further stated that “It is, therefore, not only naïve for the judges and the prosecutor of this Court to ignore the views of heads of state in important questions of the day in intemational affairs, but it is also possibly wrong, as a matter of law, to do so.”[9] This creates the question of what the Assembly of state Parties is for, if not to consider such political questions with regard to the Statute. With such an attitude, one wonders what the court would do if faced with a real political hot potato such as the trial of a citizen of a permanent member of the Security Council.

    Lastly, the court has set itself up to a potentially embarrassing situation. Mr Ruto had also similarly been allowed to be absent from trial before the hearing of his case started[10]. However, the Office of the Prosecution appealed this decision and the Appellate Chamber suspended the exemption pending a final decision of the Appellate chamber. Suppose the Office of Prosecution does not similarly appeal the Kenyatta decision, yet the Appellate Chamber in Ruto’s case finds that it is mandatory for all the accused persons to attend their trial. Will this not leave the Kenyatta trial court in a difficult legal position[11].

    However, having said that it is important to state that I agree with the final decision of the court. My view is simply that although Article 63(1) requires the accused to be present during the trial it does not ipso facto require his personal presence in court. Photos of the Deputy President of Kenya sitting idly in the court while his lawyers are busy and furiously scribbling on their legal pads is enough to question whether he actually needs to be personally present. I think it needs no gainsaying that the presence of the accused person can be registered by sending an advocate to represent his interests. This Article, I believe, was put there to protect the accused person from a trial in absentia. However, in a case, such as this, where the accused person explicitly gives up his right to be present in person but participates in the trial through an agent, the case should be able to proceed. The court should “satisfy itself that the accused’s decision not to be present at trial is made voluntarily, knowingly and unequivocally”[12]. This interpretation is important as it would differentiate this special case from that of Sudan’s President who has not yet acknowledged the court’s jurisdiction over his case. Whereas the integrity of a judicial process is compromised by the absence of the accused person in a case where s/he does not send any representation, it is left intact if the accused person is represented at the trial. Further, it will remove any accusations of discrimination against ordinary citizens who also have pending business that is compromised by their personal attendance in court. Since the provision is for the protection of the accused person s/he should be able to take or leave it. Any other interpretation, in my view, does not make sense.

    Written by: Ronald Rogo

  • By rushing to bastardise ICC, the AU is betraying Africa
    Updated Friday, October 25th 2013 at 22:45 GMT +3

    By Timothy Bosire

    Both celebration and outrage at last weekend’s African Union ( AU) decree blocking President Uhuru Kenyatta and Deputy President William Ruto from attending their crimes against humanity cases at the International Criminal Court ( ICC) are misplaced. The AU has a long, loaded history of cannibalising its mandate and objectives. Its 50 year history is replete with betrayal and inertia. No surprise!

    Only government functionaries and jubilee members who voted for President Kenyatta and Mr Ruto celebrated the decree. Sycophancy and raw tribalism could be smelt. Those who respect constitutionalism and rule of law yawned.

    This AU is Africa’s worst enemy. It has only excelled as “a talking shop” or an elite club for African despots ruining their countries through misrule. It has always served as a diplomatic jamboree for dictators and failed national leaders. Some even rose to serve as decorated chairmen of the organisation.

    By rushing to Kenyatta’s defense while down playing the rule of law in Kenya and justice for the victims of the post election violence (PEV), the AU is replaying its shameful habit of promoting and sustaining impunity and bad governance on the continent. The ICC was created to specifically tackle this impunity problem!

    Historically, Kenya is one AU founder member whose earlier leaders spent decades undermining Africa’s solidarity with impunity. The regimes of Mzee Jomo Kenyatta and Daniel Arap Moi spent the 1960s, 1970s and 1980s transacting business with Apartheid South Africa and Israel two countries which the continental body had embargoed for hurting the continent.

    Secondly, the Kenyan ICC crisis is mostly self inflicted. Both President Kenyatta and the DP participated in Kenya government’s mishandling of an International community brokered truce following the PEV out of 2007-8 General Election.

    It is the AU which sponsored the Dr Koffi Annan led Africa Eminent Persons Group that included Mrs Graca Machel, Mr Benjamin Mkapa and Dr Joachim Chissano and which brokered the peace through negotiations and a peace treaty presided over by the then AU Chairman President Jakaya Kikwete of Tanzania. Is AU now trying to abandon its baby?

    If Kenya’s Parliament domesticated the Rome Statute and all Kenyans through a popular referendum inserted a clause in the Constitution making international law part of Kenya’s laws, then how can AU justify Kenya Government’s pleas for diplomatic backing to vilify and defy the ICC. As things stand now, International law as domesticated in the supreme law of Kenya revokes immunity for any Kenyan (President) charged at the ICC for crimes against humanity.

    The two ICC indictees stood for high office and took charge of the presidency when fully aware that they were required to personally appear at the ICC. Interestingly, during election campaigns, the two cheerfully expressed confidence that they could comfortably run the country as they attend to the ICC cases using modern technology.

    Their turnaround (through Parliament and diplomatic maneuvers) to claim it is against Kenya’s sovereignty or will undermine security and stability is a classic case of shifting goal posts. Theirs are deceptive acts of deliberately taking power with the sole purpose of using it to fight the course of justice.

    More importantly, by its misguided decree the AU is encouraging the Kenyan leadership to forfeit its moral authority to lead citizens in observing and respecting their Constitution. This is a worse assault on our sovereignty than any other.

    Can the AU prove to the world that Kenya will stop to exist in the absence of Uhuru Kenyatta and William Ruto? Can the AU give us any viable and competent option to the ICC? Can the AU justify its reasons why justice for PEV victims should be delayed? Do AU leaders know that justice delayed is justice denied?

    The writer is Kitutui-Masaba MP

  • AU absurd indeed

    Monday, November 4, 2013

    Ruto back home as AU push to delay Kenya cases falters

    By Walter Menya
    More by this Author

    Deputy President William Ruto’s trial at the ICC resumes in his absence on Monday, amid strong indications that an African Union push at the UN Security Council for postponement of the Kenya cases is not going well.

    An informal gathering of the 15 Security Council members shows that the AU request was unlikely to garner the nine votes needed for a resolution to be adopted.

    Mr Ruto has waived the right to be present at his trial this week, agreeing to “voluntarily, knowingly and unequivocally and without reservation” be absent and to forego “every complaint and every appeal against any natural consequence” of his absence from the courtroom.

    The ICC Trial Chamber V (a) also granted Mr Ruto leave to be away from the courtroom on Thursday and Friday when he will be chairing a refugee and drought meeting in Nairobi.

    Mr Ruto arrived in Nairobi Sunday to take charge of government affairs as President Uhuru Kenyatta leaves on a three-day official visit to South Africa Monday.

    President Kenyatta will be out of the country until Wednesday. He is also expected in Addis Ababa, Ethiopia on Friday, where he is scheduled to give a keynote address on the closing day of the African Media Leaders Forum, which opens on Wednesday.

    In New York, lobbying by the Kenya and African Union delegation over the past few days seemed not to be making much progress.

    Just seven of the UN security council’s 15 member-states, including permanent members China and Russia, appear supportive of the resolution being circulated by the body’s three current African representatives: Rwanda, Togo and Morocco. That is two votes short of the nine required for adoption of a resolution.

    And any of the council’s five permanent members — Britain, France and the US, as well as China and Russia — can kill a resolution by exercising their veto power.

    Britain and France, which have signed the treaty establishing the ICC, are expected to oppose the African states’ resolution.

    The US, which is not an ICC treaty signatory but which often cooperates with the court, is also signaling opposition to the move to postpone the prosecution of Mr Kenyatta and Mr Ruto for one year.

    “We encourage Kenya and the African Union to continue to work through the ICC and the Assembly of State Parties to address their concerns,” a State Department official told the Nation in an interview.

    Other opponents of a deferral have proposed that complaints about ICC proceedings should be presented to the 122 nations that are parties to the Rome Statute, which created the court. Representatives from the 122 countries are expected to meet in The Hague later this month.

    Mr Kenyatta’s case is scheduled to start on November 12 but the ICC prosecutor, Ms Fatou Bensouda, has indicated that she is not opposed to delaying the case until February 2014.

    Additional reporting by Kevin J Kelley in New York

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