Defence Cabinet Secretary Raychelle Omamo (left) with Foreign Affairs Cabinet Secretary Amina Mohamed at the Assembly of State Parties forum on November 19, 2015. Ms Omamo urged Ms Bensouda to understand the concerns of the Africa Union members, who she argued, hold sway over the court’s future. PHOTO | NATION MEDIA GROUP
It’s been a week of high drama at The Hague.
Kenya took to the stump with a sole agenda — to ask the Assembly of State Parties (ASP) to change the rules of evidence applicable to cases at the International Criminal Court — to make it easier to get Deputy President William Ruto and radio journalist Joshua Sang off the hook.
The duo are facing charges of crimes against humanity linked to the 2007/2008 post-election violence.
The first item was to approve the agenda for the two-week ASP meeting.
The bureau is an 18-member committee of the Assembly that runs the affairs of the ASP, and also suggests the agenda for approval in plenary.
Kenya had two requests for inclusion in the agenda — one, a draft resolution that Rule 68 of the Rules of Procedure and Evidence does not apply retrospectively and; second, the appointment of a five-person committee to investigate prosecutorial decision-making in the Ruto case before the ICC, in the context of allegations that the prosecutor had used illegal methods to procure evidence in the case.
The last chance for the inclusion of Kenya’s items in the agenda was during this first meeting to approve the agenda.
In the lead-up to the first session of the Assembly, where the agenda was to be approved, two schools of thought had emerged within the bureau.
While most of its members were against admitting the Kenyan items into the agenda for fear that it would politicise an ongoing case and interfere with the independence of the court, the President of the Assembly, Senegalese Sidiki Kaba, was of the lone view that it would be better to admit these items on the agenda and control any possible damage through the manner in which the actual discussion would be framed.
This is the school of thought that carried the day when Kenya’s items were included in the agenda.
Speaking at a side event during the week, Mr Kaba explained that the Assembly should be a place where all issues of concern to members of the ICC were discussed, thus seeming to explain the basis on which he had allowed Kenya’s items on the agenda.
There remained a measure of nervousness about the parameters that the discussion of these items would take and it was expected that the bureau would refine the limits of the discussion which was scheduled for Friday last week.
South Africa also arrived in the Assembly with demands of its own, seeking a clarification on apparently-conflicting provisions of the Rome Statute, a matter that South Africa started pursuing as part of the fallout resulting from the decision not to arrest Sudanese President Omar el Bashir when he visited the country in June.
There followed domestic legal proceedings in which the courts declared that South Africa’s failure to arrest Bashir contravened its obligations under the Rome Statue.
On the application of the Prosecutor, the ICC also wrote to South Africa, demanding a written explanation why it did not arrest Bashir in June.
South Africa responded by requesting for more time to prepare and file its response.
Instead of preparing a response for the court, South Africa commenced its effort to have the issues covered by the Bashir controversy discussed in the Assembly.
Thus, like Kenya, South Africa was pursuing in the Assembly a matter that was pending before the court.
The Assembly, nevertheless, also admitted South Africa’s item on the agenda.
Getting their items on the agenda was already a big achievement, one that left a sense of foreboding as to what would happen during the debate later in the week.
After disposing of a number of formal reports, the first “political” session of the Assembly was a segment called “general debate”, where states make prepared statements on matters of general importance regarding the Rome Statute.
Also, inter-governmental organisations like the AU and the EU, as well as NGOs, are allowed speaking roles during the general debates.
The remarks by the representative of the AU, were followed by South Africa, Uganda, Kenya and Ethiopia.
Because the heads of delegation for these African countries were ministers, as opposed to other countries whose heads of delegation were ambassadors, they were given first priority in the general debate.
Amid cheers from Kenyan MPs that were strategically positioned in the hall, these countries made strong statements, the substance of which was that they felt that the different concerns from Africa were not listened to within the Rome Statute system.
These statements created the impression Kenya and South Africa had, at last, put in place a pan-African platform that would produce interesting results when the debate on their respective items that had just been allowed into the agenda would take place.
With the ebullience of having secured their items on the agenda of the Assembly, and after a stern lecture to other delegates, the African delegations then noisily left the room, greeting and congratulating one another as they walked out, and generally making the point that there was no business after their business.
This was hardly the attitude that people who wanted favours from other countries should have been displaying. They would later pay for their arrogance.
If getting their items on the agenda was an achievement, navigating the debate on those items was underwhelming.
By bulldozing its way, Kenya managed to speak three times, rather than the allocated one slot, but still failed to get the Assembly to approve its two draft resolutions.
While there was a little more sympathy for South Africa, its request was ultimately also not approved.
Only Uganda spoke in support of Kenya’s motions, and although Kenya had presented a picture that the entire African continent was behind its application, other African states remained silent during the debate.
EUROPEAN REJECTION OF KENYA'S REQUEST
European countries, which have a strong voice in the affairs of the Assembly, and which Kenya had lobbied in the quest for favourable decisions, made their positions known through a common European Union statement which rejected Kenya’s request.
Non-EU European states made individual statements also disagreeing with Kenya and by the end of the debate, it was clear that the country’s request was going to fail.
Francis Dako, a Benin civil society lawyer, who also spoke during the debate vehemently opposed Kenya’s request, making the point that Kenya had failed to institute independent investigations into claims made by the ICC prosecutor that there had been a systematic programme to eliminate or kill Mungiki witnesses.
In response to this assertion, Kenya’s Foreign Secretary Amina Mohammed emotionally responded that civil society was defending Mungiki who were terrorists, like those involved in the recent killings in France.
This response caused some confusion as many in the audience did not understand who Mungiki were.
This was the second time that Kenya had promised so much but delivered so little.
REST OF AFRICA SILENT DURING DEBATE
In the 2013 Assembly, Kenya claimed that it had the support of the African continent in its demand that the Assembly should approve a resolution that no head of state should be put on trial while still in office.
While the AU was unanimous in making this resolution whose approval before the Assembly Kenya then spearheaded, only South Africa supported Kenya on that occasion, the rest of Africa choosing silence during the debate.
Once again, Kenya miscalculated badly.
While the professional diplomats were good at their work, a noisy band of Kenyan MPs formed part of the rather large throng of Kenyans at the Assembly.
Not knowing how the Assembly works, and armed only with arrogance for their political corner, they wandered into and out of meetings looking for opportunities to aggravate whoever was opposed to the Kenyan position.
The ubiquitous presence of these haughty MPs provided ready proof of the dire domestic situation in Kenya and therefore a reason why other countries must not listen to the country’s pleas.
A Kenyan ambassador who normally leads the country’s engagement with the ICC complained that these politicians had undone months of diplomacy that he had put in place.
A large number of African members of the ICC are there to stay and will not walk out with Kenya.
Why would Mali, Central Africa, Cote d’Ivoire and, yes, Uganda, leave the ICC when they have recently referred cases there?
As the events of this week have shown, Kenya’s frequent threats that it will lead a mass walkout from the ICC is only wishful thinking.
Kenya can leave the ICC if it wants, but Africa is unlikely to follow.