By PATRICK MAYOYO firstname.lastname@example.org and DAVE OPIYO email@example.com
Posted Thursday, May 9 2013 at 09:15
Posted Thursday, May 9 2013 at 09:15
Kenya is calling for the termination of crimes against humanity charges facing President Uhuru Kenyatta and Deputy President William Ruto at the International Criminal Court.
Former radio journalist Joshua Sang is the other Kenyan set to stand trial.
In a strongly worded statement to the United Nations Security Council through Kenya’s Permanent Representative to the UN Macharia Kamau, the government asked the UN to present its petition to ICC during a meeting with The Hague court prosecutor held on Tuesday.
“What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case at the Hague without much further ado,” the petition says in part.
The statement warned that violence could break out in Kenya that would affect stability in the entire region if President Kenyatta and Mr Ruto were forced to attend trial at The Hague after having secured endorsement of the people in an election despite the charges facing them.
The petition questioned the jurisdiction, partiality and competence of the ICC, expressing the government’s reservations over the manner in which the cases facing the three have been handled.
Hot on the heels
Kenya argues that the proceedings against President Kenyatta, Mr Ruto and Mr Sang are misplaced in light of the prevailing circumstances and lack of cogent evidence to back the charges.
“The original claims might have been false and or manufactured. It has since come to light that the evidence could be tainted and or procured through inducement and or corrupt measures,” Mr Kamau said in a the confidential letter to Mr Menan Kodjo, the President of the UN Security Council.
The two leaders and Mr Sang are facing charges of crimes against humanity arising from the 2007-2008 post-election violence that led to the death of 1,133 people and 650,000 rendered homeless.
Mr Kamau’s letter comes hot on the heels of a similar attack by his deputy Koki Muli Grignon, who last month questioned the courts performance at the UN General Assembly.
Ms Grignon stated that continued intervention by the ICC would jeopardise peace, stability and efforts at communal reconciliation in Kenya.
“Punitive vengeance in the name of justice cannot be a means to reconciliation; it instead festers quietly until … it explodes,” Ms Grignon declared.
Mr Kamau adds President Kenyatta and MNr Ruto “who are under question before the Court have not only been the greatest agents of cohesion and but have been at the forefront and are the glue that binds the country during the election and transition period”.
It adds that continuation of the case is not in the interest of peace and justice in Kenya, concluding that the absence of the ICC suspects from the country may undermine the prevailing peace not only in Kenya, but across the region.
“It is a fact that the very suspects who are being prosecuted and suffice to say have received overwhelming support from the citizens of Kenya in the just concluded 4th March 2013 elections,” the petition notes.
It adds that the support President Kenyatta and his deputy received during elections suggest that Kenyans are ready for them to be their political masters.
“This mandate was received from the Kenyan public in exercise of their inalienable democratic rights and civic duty,” Mr Kamau observes.
Kenya adds that the manner in which the cases are being conducted is neither impartial nor independent. “There is no demonstrable intent from this conduct to show that the main purpose of the proceedings is to bring justice,” Mr Kamau says.
Kenya’s attempts to have the cases facing President Kenyatta, Mr Ruto and Mr Sang at the ICC deferred or terminated have centred on challenging the court’s jurisdictions over the cases and in convincing the UN Security Council to postpone and return the cases to Kenya.
The twin assaults begun immediately after the naming on 15 December 2010 of six Kenyans as suspected perpetrators of the killings which claimed more than 1,300 Kenyans and displaced more than 500, 000 others.
The first round of diplomacy, which was led by then Vice President Kalonzo Musyoka, targeted African countries and it succeeded in persuading the African Union to accept to its request of a deferral.
Lobby super powers
Then in February 2011, Mr Musyoka left for Beijing to lobby China’s support for a 12-month deferral even as former Agriculture Minister and diplomat, Dr Sally Kosgei, was dispatched to Brazil and Washington to lobby super powers to support Kenya’s bid to compel ICC to defer the cases to give the country a chance to establish special judicial process to prosecute the post-election violence suspects.
Then Attorney General Amos Wako in March 2011 filed an application at the International Criminal Court challenging cases facing six Kenyans summoned to make an initial appearance at The Hague.
The government hired British lawyers Geoffrey Nice and Rodney Dixon to handle the suit. It lost the case.
On April 26, the East African Legislative Assembly, passed a resolution urging the EAC Council of Ministers to implore the ICC to transfer the cases to the East African Court of Justice (EACJ).
The accused have also been calling for deferral of the cases citing inclusion of evidence from five new witnesses and the shortage of time for the defence to prepare its case.
The trial date for Mr Ruto and Joshua Sang has since been put off.
On Tuesday, Mr Kamau said the election of President Kenyatta and his Deputy William Ruto sent a clear message to the world that the two persons were not only innocent but also deserving of the highest office of the land.
Mr Kamau said the incoming administration should be given a chance to start off without the 'yoke and burden of the past fettering their action.’
The envoy said the country’s top leadership cannot be expected to effectively perform their duties in an orderly manner 'in the face of an offshore trail that has no popular resonance and that serves no national or international purpose.’
“Neither can the state be expected to be orderly under such circumstances,” he said.
'The UNSC must therefore play its role and bring this matter to a halt…we ask it to take the much needed political stance that Kenya must be given the time and opportunity to apply the principal of pre- eminence of National Courts,” added Mr Kamau.
“The UNSC also has a duty and obligation to assist Kenya overcome this serious politically sensitive and potentially destabilising situation,” he went on pointing out that the two cases before The Hague based court were crumbling fast.
He said the UNSC needs to take 'bold and decisive’ steps to ensure that Justice is done and the same is achieved within the confines of the Rome Statute.
The envoy asked 'friendly nations’ in the UN Security Council to use their good offices and prevail upon the ICC to reconsider the Kenyan cases.
“Our hope is that the friendly nations will see the merit in our case and understand the urgency and gravity of the situation we face,” said Mr Kamau, “It is an affront to the exercise of democratic space in a sovereign nation”.
He said Kenya had made unprecedented steps in improving its governance systems and institutions over the last two and a half years, including the adoption of a new constitution.
He said the ICC should be regarded, she declared, as “the court of last resort” and suggested repeatedly that Kenyan institutions were capable of delivering justice impartially.