ICC: Assembly of States Parties Establishes One Law for the Poor, Another for the Rich and Powerful
Prior to the Assembly of States Parties, the African Union (AU) and Kenya consistently advocated for immunity from prosecution for sitting Heads of State. Demand for immunity from criminal prosecution is contrary to legal principles applied in most jurisdictions. A common practice is for an accused charged with murder or other serious crimes to step aside from holding a public or political office until the trial is concluded.
In seeking to shield accused persons from criminal prosecutions, the joint AU/ Kenya request to the UN Security Council sought to defer the cases against the President of Kenya and his Deputy for a period of twelve months. To grant the request would effectively stop the prosecution of the two accused while the trial of a third, journalist Sang, charged with similar offence (crimes against humanity), would probably continue. By selectively seeking a deferral of cases of some, but not all accused persons, arising from the same set of events, offends the cardinal principle of equality of all accused before court.
The joint AU/Kenya application was based on the official capacity of the president and his deputy. Additional reason advanced in support of the request was that an earlier tragic terror attack at the Westgate Mall in Nairobi was a threat to international peace and security and therefore falls within Chapter VII of the UN Charter. The Security Council was urged to use the Chapter VII powers to suspend trial of the President and his Deputy until such times that threats to international peace and security occasioned by the Westgate Mall attack is dealt with.
The Security Council rejected the request and held that continued criminal prosecution of the two Kenyan leaders would not constitute a threat to international peace and security. The Security Council also pointed out that there was no nexus between the tragic terror attack at the Westgate Mall in Nairobi and the broader threat to international peace and security.
Second, having failed to secure a deferral at the Security Council, the AU/Kenya representatives moved to another forum, this time at the Assembly of State Parties. The AU/Kenya delegations sought to amend the ICC Statute by incorporating an immunity clause which would bar criminal prosecution of sitting Heads of State and those who act in that capacity. The AU and Kenya also sought to introduce an amendment that would recognise official capacity of a Head of State as a bar to physical presence in court to attend trial. This, the AU/Kenya delegates argued, is to protect the dignity of a Head of State from appearing in a foreign court as well as to protect the sovereignty of the Republic.
These proposals were premised on Article 27 (1) of the ICC Statute which says that the law shall apply equally to all persons without any distinction based on their official capacity. Article 27(2) of the same Statute further states that claim of immunity based on official capacity of accused shall not bar the Court from exercising its jurisdiction over such a person.
Rejection of AU/Kenya proposal
The Assembly of State Parties rejected the AU/Kenya proposal that would have effectively legalized impunity.
The AU/ Kenya delegates were, however, in luck when Britain and France, the two State Parties to the Rome Treaty who had abstained at the Security Council during the deferral request, proposed the adoption of a new rule which would allow accused persons to attend their trials via video technology. Britain and France were supported by a number of ICC members. Reading the speeches and background papers presented at the assembly, one finds that no new grounds were persuasively advanced to support the adoption of the new rule.
Yet, the motion was passed without a vote but by consensus. The new rule says an accused can request “to be allowed to be present through the use of video technology during part or parts of his or her trial.” Two caveats were attached to the new rule. First, the rule requires the court, on the request of the accused in writing, to rule on a “case-by-case basis”. Second, the rule gives the court a leeway to excuse an accused from part of a hearing if the defendant is “mandated to fulfil extraordinary public duties” The rule however, does not provide any criteria for determining what facts if any, may satisfy the requirement of the term “mandated to fulfil extraordinary public duties.”
Negation of the principle of equality
As a matter of law, the Rules of Procedure and Evidence do not override any provision of the Statute. Therefore, the law that requires an accused to attend his trial still takes precedence over the new rule although the court may authorise hearing of cases by video link. Significantly, the new rule does not provide immunity for sitting Heads of State.
Regardless of any good intention, if at all, the adoption of this rule is a step backward in the context of the development of international criminal justice. I concur with the statement issued by Amnesty International soon after the motion was adopted: “It is the first time a distinction for persons with official capacity has been recognised in international trials for crimes under international law, striking at the notion of equality before the law.”
A further unfortunate matter is that this new rule was adopted one day after the ICC Trial Chamber ruled that Kenyatta must attend all his trial – already suspended three times – when it opens on 5 February 2014. What the new rule does is to effectively overturn the decision of the Kenyatta Trial Chamber. If followed at national levels, parliaments of nation’s states may begin to pass laws to reverse or revise court decisions that they do not agree with.
While in the short term the immediate beneficiary of the new law are likely to be President Kenyatta and his deputy Ruto, those who stand to benefit most are other state officials and politicians currently at large. The test will ultimately depend on whether the Court defines narrowly or expansively the status of an accused and whether he is “mandated to fulfil extraordinary public duty”. How far down the chain of state officials the Court will go to determine the status of a persons exercising ‘extraordinary public duty’ is anybody’s guess? Do the functions of cabinet ministers/secretaries, members of parliament, Senate, ambassadors, senior military, police and intelligence officers fall under what may be described as ‘extraordinary public duty?
Depending on the Court’s definition, a precedent will be set for excluding a number of public and state officials from attending their trial to the detriment of victims and survivors. Overall, the passing of this rule is a negation of the principle of equality of all persons before the law. It also creates a two-tier trial process.
Alex Obote Odora
Judge Chile Eboe-Osuji has some additional remarks in a separate concurring opinion:
10. In his submissions opposing the application for stay of proceedings, the victims’
counsel pointed out that this application for stay was made in the context of other
extrajudicial efforts (notably at the African Union and the UN Security Council) aimed
at preventing the commencement of the trial. It is an observation with which I have much
sympathy. It is also noted in that context that this is the second time the Defence Counsel
have brought an application for stay of proceedings. On the first occasion, the application
came with other requests aimed at preventing the case from proceeding to trial.
11. I have observed once before that the Defence Counsel in this case are jointly and
severally among the most experienced in the practice of international criminal law. If it had
truly appeared to them that the case they make in these applications could conceivably attract
the very drastic and exceptional remedy of permanent stay of proceedings, it surely must
have occurred to them that they could—^more profitably—convert their complaint into a
strategy of a criminal defence that is aimed at raising reasonable doubt on the merits of the
case. But they seek, rather, a strategy the aim of which is to abort trial—amidst widely
publicised extra-judicial manoeuvres that were similarly aimed at aborting trial on the merits.
Is it unfair then for the victims’ counsel to convey the impression of these applications as he
has done on behalf of his clients?
12. In the circumstances, I am constrained to reiterate an earlier observation. The
indictment in this case has been confirmed by a Pre-Trial Chamber in a carefully considered
decision following an inquiry. In the intermediate outcome, a judicial inquiry has been
primed to try and find out whether the accused is criminally responsible, as charged, for any
aspect of a violent national upheaval that resulted in the death of very many human beings;
and the maiming and the displacement and the dispossession of many more. The balance of
justice swings in favour of conducting that judicial inquiry—and not in favour of legal
technical or extra-judicial manoeuvres that are aimed at aborting the trial. Let the victims
have their inquiry, while the accused continues to enjoy his presumption of innocence.
What is the purpose of an African Union memorial?
2013-12-05, Issue 657
The African Union has resolved to create a memorial to the victims of human rights violations in Africa at its headquarters in Addis Ababa. This promises both a deeper engagement with human rights and a more holistic approach to conflict transformation by the continental body.
This initiative is particularly remarkable at a time when the AU is in the headlines for its confrontation with the International Criminal Court, an institution that represents a step forward for international justice – albeit currently compromised and partial. In contrast, the African Union Human Rights Memorial (AUHRM) project shows the AU in a precedent-setting role, both in its establishment of a continental memorial and in its engagement in a consultation process with various civil society groups and memorialisation experts to inform the content and form of the memorial.
No memorial can respond to the immediate needs of those Africans who are fleeing to churches for sanctuary again and United Nations officials are warn of a risk of mass atrocities in the Central African Republic (CAR). As in neighbouring Democratic Republic of Congo (DRC), military force is an essential component in any effort to halt the massacres. The African Union may authorise an intervention force, as required by the principles of its Constitutive Act; it has committed to protect civilians in grave circumstances of war crimes, genocide and crimes against humanity. But if the lessons of the DRC tell us anything it is that peacekeepers, however robust, are not sufficient to resolve conflicts. Even as the M23 are defeated, but some wonder whether a new M24 will emerge.
If it were true, as some scholars argue, that conflict in Africa is rooted in contestation over scarce resources or is a response to collapsing ‘weak’ corrupt states, then rapid external interventions and post-conflict ‘statebuilding’ projects might succeed. But too often peace operations don’t work, or broker unstable, partial settlements. This reinforces the evidence that the origins of conflict lie in complex socio-political logics and processes. Perpetrators are not simply driven by greed or grievance; understanding and ending conflict depends on changing the ideas and social practices that organise conflicts and on promoting existing cultures of peace. Notably, African communities are bound by commitments to honour their dead; intra-communal and regional solidarities can also be forged through practices and symbols which uphold human dignity.
The AUHRM project represents Africa’s recognition of this need to go beyond conflict resolution and engage in transformation. The project has been in the making since 2003. The proposal for a memorial began as an expression of moral regret for its history as a bystander to atrocities: the OAU failed to intervene to protect Rwandans from genocide and it failed to denounce the Red Terror in Ethiopia in the 1970s—an atrocity carried out on its very doorstep in Addis Ababa. On the tenth anniversary of the 1994 genocide in Rwanda, the AU stated: ‘the need to restore the dignity of the victims through acknowledgement and commemoration of their suffering in order to… prevent further violations of this magnitude.’
The annual commemoration of the genocide in Rwanda became the basis for a commitment to commemorate the Red Terror at the AU headquarters, in recognition of the unique history of its location. By this time, the AU had inherited the neighbouring compound, the land formerly of the former Kerchele prison, known as ‘Alem Bekagn’ (farewell to the world), a site of massacre, torture and abuse, which was due to become the site of the AU conference centre and headquarters building. In January 2012, the new building was inaugurated with a vast continental gathering. As part of the ceremony three African leaders, Presidents Paul Kagame, Jacob Zuma and Yayi Boni, laid a foundation stone for the AUHRM at the site.
As indicated by the small gathering which attended the unveiling of the AUHRM foundation stone, some leaders have yet to embrace the initiative – even if none has yet openly opposed it. Indeed, the project is better off without the support of some, for instance the AU narrowly avoided the prospect of a notorious human rights abuser President Theodoro Obiang Nguema unveiling the stone. But certain AU representatives have been firm supporters of the project, among them the Rwandan, Ethiopian and South African ambassadors. Their commitment originates in the experience of particular national atrocities, but they have now become champions for the victims of violations elsewhere. As such, the AUHRM project has the potential to encourage leaders to challenge violations and honour all victims; it is not simply a means for the construction of legitimacy as some might have envisaged.
The project is still in its early stages. At the AU, the foundation stone is the only physical marker. But questions are already being asked its future merit, as one blogger recently commented: ‘What is the purpose of having exhibits of mass atrocities such as “The African Union Human Rights Memorial Project” when you are not doing much to abate future crimes against humanity?’ This reminds us that the premise that public remembrance is a means to ensure ‘never again’ has already been shown to be false. Memorialisation is not equivalent to peacebuilding, on the contrary, it can become a means to mobilise for war and strengthen exclusionary notions of community, making outsiders vulnerable or targets. Nor can public remembrance offer a panacea for loss and suffering; often it is painful and it may revive trauma. We may deem a monument to be a symbolic form of ‘reparation’ but it does not replace the moral duty to care for survivors and address their economic and social losses.
A memorial that takes elite, selective and static forms will not prevent future violence and might even contribute to the consolidation of certain forms of selective memory and associated political repression. And yet genocide remembrance fuelled the spread of international human rights norms, while public forgetting constitutes a form of denial. The answer to this dilemma lies in the processes through which memory are made. Indeed a dialogue about how past atrocities are remembered may even have more impact than the forms and content of a particular memorial. In this regard we should welcome the AU’s launch in 2010 of a series of three consultative meetings at its headquarters in Addis Ababa with survivors, memorialisation experts, scholars and human rights groups to gather recommendations for an AUHRM; its outcomes included the formation of an AUHRM network. In 2013, the AUHRM Interim Board and the Department of Political Affairs at the AU, with which the ownership of the physical memorial lies, extended the consultation process, authorising six ‘in-country’ consultations to be coordinated by civil society groups in the AUHRM network.
Justice Africa has worked in partnership with local memorial museums and human rights groups to support the AUHRM process. Over the past year, we have co-convened memory forums in Kigali on the genocide in Rwanda, in Addis Ababa on the Red Terror and Graziani massacres (perpetrated by the Italian Fascist regime in 1937), and in Dakar on slavery; in each, survivors, scholars and memory practitioners have shared and examined the histories of violence, or spoken of their personal suffering and loss and the ways in which they remember, as well as of the challenges of memorialisation. Tutsi survivors in Rwanda spoke of commemoration as a means to overcome divisions, and of how they also remember the Hutus who were killed in the genocide and ‘reading loudly their names and acts’. Ethiopians told private stories of the Red Terror and expressed concern at the limits on access to documentation of the killings, despite public trials and convictions. Activists combatting contemporary slavery in Mauritania described how women and children remain in bondage while there is an imposed silence about both these and the historical injustices of the slave trade: ‘We are forbidden to memorialise slavery and we are forbidden to fight slavery’. Throughout these consultations we have been inspired the memory work going on around the continent and its association with human rights education, with examples from District Six (South Africa), La Maison des Esclaves (Senegal), the Kigali Genocide Memorial Centre (Rwanda), Constitution Hill (South Africa) and the International Coalition of Sites of Conscience among others.
The wrongs to be memorialized at the AUHRM include slavery, apartheid and genocide, described by Professor Andreas Eshete of the AUHRM Interim board as ‘practices which are paradigms of public evil, for they exclude an entire people from the equal title of belonging to a common humanity.’ But already the scope and reach of the project is growing and consultations on the memories of civil war in South Sudan and prison massacres in Libya will take place in the months ahead. Such dialogues among concerned citizens should continue. In the words of the Professor Eshete: ‘the AU Memorial should become an enduring, generative source of Pan-African solidarity’. We need a continental ‘citizen-led movement’ to promote dignity, rights and an end to atrocities in Africa.
* Rachel Ibreck is Acting Director, Justice Africa
* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM
* BROUGHT TO YOU BY PAMBAZUKA NEWS
* Please do not take Pambazuka for granted! Become a Friend of Pambazuka and make a donation NOW to help keep Pambazuka FREE and INDEPENDENT!
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.
1. Martyn Davis of Frontier Advisory, in David Pratt (2013) ‘Doubts remain over Congo despite surrender of rebels’, The Herald, Friday 8 November, http://www.heraldscotland.com/news/world-news/doubts-remain-over-congo-despite-surrender-of-rebels.22634080 accessed 19 November 2013
2. See Paul Richards (2005) ‘New War, An Ethnographic Approach’, No Peace No War, An Anthropology of Contemporary Armed Conflicts, Oxford, James Currey, pp 1-21
3. Daniel Kawuma (2013) ‘Open Letter from Massacred Africans to the African Union’, African on the Blog, 30 October, http://www.africaontheblog.com/open-letter-from-massacred-africans-to-the-african-union/, accessed 19 November 2013
This is an excellent article which has interpreted the ASP rule quite well by touching on its implications, given the suspects at large and how crimes against humanity will be handled in the future.
Uhuru Kenyatta is the Buffalo!Lions is The OTP Bensouda>
Take a look of What is taking place in a Chimpanzee Country CAR Once Ruled by a Gorrilla -Chimp Bokaza its Capital called Bangui.A Former French Colony . Somepowers Must Occupy this Country Administer it and save Lives >Since Independence the People Of this Country has never Not even a day they have experienced Democracy hence Dictatorship .The Population of CENTRAL AFRICAN REPULIC are led by animals and they themselves are animales.>>
10. In his submissions opposing the application for stay of proceedings, the victims’ counsel pointed out that this application for stay was made in the context of other extrajudicial efforts (notably at the African Union and the UN Security Council) aimed at preventing the commencement of the trial. It is an observation with which I have much sympathy. It is also noted in that context that this is the second time the Defence Counsel have brought an application for stay of proceedings. On the first occasion, the application came with other requests aimed at preventing the case from proceeding to trial.
11. I have observed once before that the Defence Counsel in this case are jointly and severally among the most experienced in the practice of intemational criminal law. If it had truly appeared to them that the case they make in these applications could conceivably attract the very drastic and exceptional remedy of permanent stay of proceedings, it surely must have occurred to them that they could — more profitably — convert their complaint into a strategy of a criminal defence that is aimed at raising reasonable doubt on the merits of the case. But they seek, rather, a strategy the aim of which is to abort trial — amidst widely publicised extra-judicial manoeuvres that were similarly aimed at aborting trial on the merits. Is it unfair then for the victims’ counsel to convey the impression of these applications as he has done on behalf of his clients?
12. In the circumstances, I am constrained to reiterate an earlier observation. The indictment in this case has been confirmed by a Pre-Trial Chamber in a carefully considered decision following an inquiry. In the intermediate outcome, a judicial inquiry has been primed to try and find out whether the accused is criminally responsible, as charged, for any aspect of a violent national upheaval that resulted in the death of very many human beings; and the maiming and the displacement and the dispossession of many more. The balance of justice swings in favour of conducting that judicial inquiry—and not in favour of legal technical or extra-judicial manoeuvres that are aimed at aborting the trial. Let the victims have their inquiry, while the accused continues to enjoy his presumption of irmocence.
13. I fully join the Chamber in dismissing the application
Click to access doc1694736.pdf
INTERVIEW – Muthoni Wanyeki: “In Kenya, this is not a time when moderates are carrying the day.”
Posted on November 26, 2013 by AfricanArgumentsEditor
Muthoni Wanyeki: “People like me are seen as traitors to the Gikuyu community.”
Muthoni Wanyeki is former Executive Director of the Kenya Human Rights Commission (KHRC). We met in London to discuss the current environment for civil society and human rights organisations in Kenya.
We began by discussing current UK policy towards Kenya and, in particular, the issue of diplomatic relations with a government that is headed by a pair of ICC-indictees. For more on this see our recent article ‘Kenya: an illiberal backslide in the era of the ICC’.
MW: Muthoni Wanyeki
MT: Magnus Taylor – Editor, African Arguments
MW: They [the UK] have no clue – as far as [they’re] concerned it’s a legitimate government. But they’re playing it wrong. Instead of being all apologetic they should just state that ‘this is our position.’
In a study of strategy, the Kenyan government, such as it, has been brilliant – they go super on-the-offensive and no one knows what to do. But, truth be told, Kenyans are very pragmatic – they are not going to start targeting UK businesses. There are too many Kenyans who work in them and depend on them.
MT: What should the UK’s ‘Red Lines’ as regards our relationship with the Kenyatta administration be?
MW: They [the UK] have already said this – [it’s] non-compliance with the ICC, but they [the UK] are looking for a way out.
MT: What sort of levers do ‘we’ [the UK] have over Kenya?
MW: The UK needs to continue to state its position categorically. I don’t think there’s any real risk of anything happening – too many Kenyans are invested in the British presence. There’s no need to bring out ‘big Sticks’ until they [the indictees] stop cooperating.
MT: What is the atmosphere in Kenya currently like – particularly for those people who work in the civil society/human rights world?
MW: The atmosphere [in Kenya] has been bad since the election. The Supreme Court judgment was devastating. I worked on the petition and can report the Supreme Court did not even engage with some of our evidence…we had an observer in the judicial scrutiny, which gave a lot more evidence than actually went into its formal report…we wanted to raise that the final morning, but the lawyer said that we had enough without it – we agreed at the time, but now wish that we hadn’t listened to her. At least we’d have it on record.
MT: And what effect did the Supreme Court judgement have on people working in the human rights sector?
MW: It [The Supreme Court judgement] called into question everything we’d worked on for five years: what didn’t we do in terms of electoral reform? What didn’t we push for? What didn’t we do in terms of judicial reform?
The judgement demobilised people in the human rights community and made all the work we do seem pointless. It has also deeply divided the country – half of the country is deeply angry, the other half is ‘jubilant’.
MT: Why do people on the winning side feel so ‘jubilant?’
MW: There’s work to be done on the motivations of the winning supporters…but there may be some legitimate concerns among members of the Kikuyu community (which I belong to): some people thought this [voting for Jubilee] was what would keep them safe.
Middle class Gikuyus believe those ‘false narratives’ that have developed – ‘we suffered most under colonialism, we fought most for independence, we are blamed most for the country’s uneven development. And all we do is work hard’…as though other people didn’t suffer, didn’t fight, as though systemic discrimination doesn’t exist and as though other people don’t work hard.
They have the feeling that they made a huge mistake in handing over power to somebody else in the Moi regime – they suffered for it – many Gikuyus talk like they went through a genocide during this period. They think ‘we’re back and we’re not moving, and why should we…if people want to have what we have then they should work harder.’
MT: And what is the reaction to people like you who try to counter this narrative?
MW: People like me are seen as traitors to the Gikuyu community. The kindly view is that we are ‘misguided.’
MT: What are your views on the repressive legislation recently tabled? For example, the Media and Communications Bill and Public Benefits Organisations Act.
MW: On the Media and Communications Bill, the media has fought back and media ownership is quite in bed with ‘the Jubilants’ anyway.
Anti-civil society legislation may actually go through – it’s in the Jubilant Manifesto – they’ve had a problem with civil society for a long time anyway; particularly since the names were released of who was going to be charged by the ICC.
MT: What impact would the anti-civil society legislation have on the operational capacity of these organisations?
MW: In civil society as a whole, 81 per cent of organisations get their budget from membership fees. But human rights organisations, which do not, would be devastated. This legislation has therefore been carefully drafted to target these kinds of organisations: it would finish them. They would not be able to operate.
Some committed people would carry on, but the institutional foundations would go.
MT: What is happening at a local level – beyond Nairobi?
MW: The greatest danger is at the community level. The Human Rights Protection Chain was part run by the KHRC and in my experience it was always the local community workers who were in and out of it.
Generally, when there’s activity at the ICC, risk to community-based people goes up (particularly in the Rift Valley) – the threat is generally directed by local politicians and security officials, but via relatives and community members.
Usually an offer is made first which is not coercive and if that is refused then action becomes threatening.
MT: Is this coercive action top down or bottom up?
MW: A little of both – it is politically inspired, but there is both individual and collective agency there too. I see it getting worse before it gets better.
MT: What would need to happen for things to get better?
MW: For things to get better we would need a new government. There is nothing going on in government right now but the ICC…there is a big ‘eating’ frenzy, everyone is under surveillance and on standby.
MT: Does anyone in government differ to the current position on the ICC?
MW: Probably, but what can they do? These are not stupid people and I think people are beginning to realise [that it’s not doing the country any good] – the last poll showed that 67 percent of Kenyans want Kenyatta to attend his trial and 51 per cent actually support the continuation of the trials at the ICC.
People seem to be starting to think: ‘You [Kenyatta] told us that this was a personal problem, so if it was, then just deal with it and go [to the Hague]‘.
It’s not just Kenyatta either – he’s working with a team of very bellicose and belligerent people. There are a lot of hardliners there who believe that it would be a sign of weakness for him to even appear.
This is not a time when moderates are carrying the day.
Kenyatta case becoming trial of International Criminal Court itself
Blow to court’s credibility if it abandons trial of Kenyan leader
Mon, Jan 6, 2014, 01:00
First published: Mon, Jan 6, 2014, 01:00
As Kenyan president Uhuru Kenyatta continues to burnish his reputation as a pro-western troubleshooter by brokering peace talks in South Sudan, he will be hoping such apparent indispensability could soon help him shrug off allegations of heinous crimes against his own people.
Judges at the International Criminal Court (ICC), where Kenyatta faces charges of crimes against humanity, are expected to rule soon on an application by the court’s prosecutor for a delay to the February 5th start of his trial – on the grounds that the evidence against him is no longer sufficient.
There have been angry accusations of witness interference on both sides. Kenyatta’s lawyers have previously asked for the case to be thrown out because, they argued, the evidence against him was tainted by false statements. The option to dismiss is still open to the judges.
The three-judge trial chamber will have to consider the dramatic admission before Christmas by the prosecutor, former Gambian attorney general Fatou Bensouda, that one key witness is no longer willing to testify, while another has admitted giving false evidence about a key event.
The judges will also have to consider Bensouda’s statement that she will use the three-month delay being sought to see if there is any new evidence – and, if so, whether it is strong enough to warrant a trial.
Fear and loathing
Given the climate of fear and loathing that the trial of Kenyatta and that of Kenyan deputy president William Ruto – which is already under way – have engendered in Kenya, it is possible that reliable new evidence six years on will be hard to come by.
Ironically, what the judges will not be allowed to consider is the political context: the fact that the Kenyatta case is now regarded as “the most important confrontation” in the court’s history, given the degree to which it has pitted the ICC against the African Union, which has urged Kenyatta to boycott the court as racist.
Only one conviction
The ICC has convicted only one person in its 11-year history: former Congolese warlord Thomas Lubanga, who was sentenced to 14 years in July 2012. All eight of its current cases are against Africans.
Both of these facts are endlessly debated. If the court were forced to abandon its first case against a sitting president, the blow to its credibility as an international institution would be immense.
It would not be lessened much by the argument, raised by victims of Kenya’s 2008 bloodbath, that the alleged failure of the Kenyan government to co-operate with the prosecutor might have been a significant contributory factor.
Kenyatta arrived in the South Sudanese capital, Juba, at the end of last week with Ethiopian prime minister Hailemariam Desalegn, also a vocal critic of the ICC, to set up the peace talks that began yesterday in Addis Ababa. Kenyatta is highly conscious of his role as a regional leader – important enough to speak regularly by phone to US president Barack Obama.
Too important, in fact, his lawyers argued, in the aftermath of the Westgate shopping mall attack by Islamists in Nairobi last September, to be cooped up in the dock at the ICC – and now too crucial to the future of South Sudan.
Kenyatta – son of Jomo Kenyatta, Kenya’s first president – denies five charges of criminal responsibility for orchestrating murder, rape, persecution, forcible transfer and “other inhumane acts” during ethnic violence after the disputed 2007 election that left more than 1,200 people dead and 250,000 displaced.