Saturday, May 16, 2015 Africog seeks non-compliance ruling against Kenya at ICC

By WALTER MENYA
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Africog Executive Director Gladwell Otieno. FILE PHOTO |  NATION MEDIA GROUP

A civil society organisation at odds with the Jubilee administration has gone to the ICC accusing the Kenya Government of non co-operation with the court, which is pursuing justice over the 2007 post-election violence.

The Africa Centre for Open Governance wants the court to find that Kenya failed to fulfil its obligations as a State Party to the Rome Statute by frustrating investigations by ICC.

Africog was one of the parties that put up a spirited battle at the Supreme Court to have the presidential results of the last General Election cancelled.

They challenged the election of President Uhuru Kenyatta and Deputy President William Ruto over election irregularities. The Supreme Court, however, threw out the petition.

This time, they have taken their battle against Jubilee to the ICC.

They tell the Hague-based judges who have been handling cases of crimes against humanity against President Kenyatta and Mr Ruto that there have been multiple and sustained efforts by Kenyan authorities to frustrate investigations by the International Criminal Court.

The charges against President Kenyatta were terminated in March on the grounds that ICC Prosecutor Fatou Bensouda did not have sufficient evidence.

But the case against his deputy, who is accused alongside radio journalist Joshua Sang, is ongoing even though the prosecutor has also faced a number of challenges with some witnesses.

Africog executive director Gladwell Otieno says in a filing before the ICC Appeals Chamber that there are sufficient grounds to have the country declared non-compliant with the Rome Statute, a situation that would pave the way for referring Kenya to the Assembly of State Parties.

The epitome of these efforts was the government’s refusal to freeze any of President Uhuru Kenyatta’s assets in clear violation of Part 9 of the Rome Statute.

“Taken together, these actions by the Kenyan government appear to illustrate a general policy of unwillingness to co-operate with the ICC. The fervent efforts that the government of Kenya has undertaken to shield Mr Kenyatta from attending trial are difficult to reconcile with the Attorney General’s (Prof Githu Muigai) statements relating to co-operation,” Ms Otieno said in her submissions of May 8 after the ICC allowed Africog to make amicus curiae (friend of the court) filing in the appeal case by ICC Prosecutor Fatou Bensouda.

Ms Bensouda wants the ICC Appeals Chamber judges to declare Kenya non-compliant; a situation she claims led to the termination of President Kenyatta’s case.

According to Ms Otieno, Kenya’s reluctance to fully co-operate with the ICC started as early as 2011 soon after the summonses were issued against six individuals — Mr Kenyatta, Mr Ruto, former minister Henry Kosgey, former head of public service Francis Muthaura, former Commissioner of Police Hussein Ali and journalist Joshua Sang.

“One year after the issuance of summonses, the Kenya government challenged the ICC’s jurisdiction,” Ms Otieno stated.

In its submissions, she said, the government of Kenya had argued that “…with its house being put in order, Kenya is not allowed to finish the task and to investigate and try those at all levels, particularly those at the top of political, military and administrative hierarchies who merit being tried.”

“Four years later, it appears that the government’s ‘house is still not yet in order’ given that there has been no prosecution of high-to-mid level perpetrators of violence during the post-election violence,” said Africog.

Meanwhile, said Ms Otieno, in the 2013 General Election, then Deputy Prime Minister Kenyatta and Mr Ruto formed a coalition whose central campaign issue was the divisive ICC investigations.

“Although the alliance between Mr Kenyatta and Mr Ruto is portrayed as an example of inter-tribal reconciliation, the reality is quite different. Rather than a thoroughgoing, inclusive process of reconciliation, this seemed to represent an elite pact between individuals who faced the same predicament,” she said.

“…Mr Kenyatta also managed to inflame his supporters’ enmity to the ICC and to transform the election into a referendum on the ICC,” she added.