Now African states in aggressive diplomatic efforts to halt ICC trials of three Kenyans

Emerging details reveal the desperate manoeuvres by the EA leaders to get President Uhuru Kenyatta to prevent his deputy from attending the ICC sittings ahead of his own trial on charges of crimes against humanity. Photos/FILE Nation Media Group

By DANIEL K. KALINAKI The EastAfrican

Posted Saturday, September 14 2013 at 15:56

In Summary

• The EastAfrican has learnt that President Kenyatta insisted on his deputy attending court, arguing that failure to appear before the ICC could trigger a warrant of arrest and “the argument of whether they are innocent would be lost.”
• After failing to stop Mr Ruto’s brief appearance in the ICC dock last week, African states, led by the African Union and masterminded by Uganda, are now pursuing an aggressive diplomatic effort to halt the trials.
• In addition, President Museveni has successfully sought an extraordinary summit of the African Union, whose sole agenda will be Africa’s relationship with the ICC. The meeting is to be held in October, ahead of the start of President Kenyatta’s trial.

Uganda and Rwanda asked President Uhuru Kenyatta to stop Deputy President William Ruto from flying to The Hague as his trial on charges of crimes against humanity kicked off last week, highly placed sources have told The EastAfrican.

The request was tabled when President Kenyatta met Uganda’s Foreign Affairs Minister Sam Kutesa and Rwanda’s Louise Mushikiwabo in Nairobi on September 8, two days before Mr Ruto flew out to the International Criminal Court.

The EastAfrican has learnt that President Kenyatta insisted on his deputy attending court, arguing that failure to appear before the ICC could trigger a warrant of arrest and “the argument of whether they are innocent would be lost.”

The request was part of the behind-the-scenes efforts by the African Union to stop the prosecution of President Kenyatta and his deputy on charges of crimes against humanity at the ICC in The Hague.

Mr Ruto and journalist Joshua Sang entered a “not guilty” plea to charges of murder, deportation or forcible transfer of population and persecution over the 2007/8 post-election violence that left 1,133 people dead and displaced 650,000 others. President Kenyatta, whose trial is set to begin on November 12, is charged with murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts.

READ: Kenya pulls out all the stops to have ICC cases dropped

After failing to stop Mr Ruto’s brief appearance in the ICC dock last week, African states, led by the African Union and masterminded by Uganda, are now pursuing an aggressive diplomatic effort to halt the trials. The strategy involves mobilising support across the continent “to turn a trial of two Kenyan politicians, into a trial of the African people.”

Kenya’s Foreign Minister Amina Mohammed last week led a delegation of regional diplomats to Addis Ababa to lobby Nkosazana Dlamini Zuma, the chairperson of the African Union Commission, to have the AU spearhead the lobbying against the ICC.

Following the meeting, and teleconferences between the foreign ministers of Kenya, Rwanda, Ethiopia and Uganda between September 8 and 9 at which a strategy was developed to drum up pressure against the ICC, Ethiopia’s Prime Minister Hailemariam Desalegn wrote to the ICC on September 10, urging it to respond to a request to transfer the cases against the two politicians and the journalist to local courts in Kenya.

“Until the request of the AU is considered and clearly responded to, the case should not proceed,” Mr Desalegn wrote, in his capacity as current chairperson of the 54-member African Union.

In addition, President Museveni has successfully sought an extraordinary summit of the African Union, whose sole agenda will be Africa’s relationship with the ICC. The meeting is to be held in October, ahead of the start of President Kenyatta’s trial.

According to diplomatic sources, the summit is expected to arrive at a resolution on the ICC that would force the UN to negotiate a deal to halt the trials.

Efforts to fight the cases started as soon as Kenyatta and Ruto were sworn in, with the Kenyan leaders seeking the support of President Museveni to mobilise support against the ICC. This culminated in Uganda sponsoring a motion at the AU Summit in Addis Ababa, Ethiopia, in May, at which a resolution was passed urging the ICC to refer the cases back to Kenya.

“African leaders have come to a consensus that the [ICC] process that has been conducted in Africa has a flaw,” Mr Desalegn told reporters at the end of the May summit, which also marked the 50th anniversary of the AU. “The intention was to avoid any kind of impunity... but now the process has degenerated into some kind of race-hunting.”

The ICC, however, brushed off the resolution as a political instrument that had no bearing on a judicial process. Undeterred, African diplomats have continued to rally support against the process in The Hague using a two-pronged strategy.

Internally, the Kenyan government has been fast-tracking efforts to close camps for internally displaced people and ameliorate their conditions before the trial kicks off.

In addition, it was agreed that while the two principals would continue to publicly express their confidence and co-operation with the ICC, pressure would continue to be raised by rallying domestic constituencies. Thus while parliament and Senate turned up the pressure by voting to withdraw Kenya from the ICC, the executive, which would be required to initiate a Bill to turn the threat into a piece of legislation, continued to express confidence in the process in The Hague.

Those efforts gained a sense of urgency last week after Mr Ruto appeared in the dock, followed by Mr Sang. The reality of a sitting African leader appearing before judges at the ICC appears to have rankled many heads of state and government across the continent and has given momentum to the renewed effort to either kill the prosecution in The Hague, or hand it over to local courts in Kenya or Africa.

A senior Kenyan official told The EastAfrican that Mr Ruto, who flew back to Kenya after a short adjournment in the trial, would return to The Hague as scheduled next week.

Asked if President Kenyatta would honour his date with the Hague court on November 12, the official said: “He is prepared to go but Africans are not keen to see him go.... the extraordinary summit of the African Union has been scheduled in October, ahead of November 12. It could change the game plan.”

The EastAfrican has learnt that African states plan to take the matter to the UN General Assembly in New York later this month if the ICC does not accede to their request to drop the trial or move it to Kenya.

The African states are expected to make five points to press their case: That the trial of Kenya’s top two executives will undermine their ability to govern the country; that a lot of work has already been done to resettle the people displaced by the post-election violence in 2008; that the trial will reopen old wounds; that Kenya has a new Constitution that can be used to create local courts to try the cases; and that the AU request to have the case moved to Kenya has been ignored by the ICC.

“If they ignore us, we will need to find alternatives because the ICC has become a theatre of a witch-hunt of Africans,” a senior African diplomat told The EastAfrican, adding, “We haven’t heard of any prosecutions of people from Syria, from Burma, from Iraq; we want them to be fair and for the court to work for all people.”

African countries now want the charges dropped, the officials to be tried in absentia, or for the trials to move to a local court in Kenya.

The plan is to use the Security Council to bring pressure to bear on the ICC, a regional diplomat said. Rwanda, which is not a signatory to the Rome Statute that established the ICC in 2002, but which holds a temporary seat on the Security Council, has already expressed its support for the AU resolution on the matter.

ALSO READ: ICC: Kenya’s is a lose-lose strategy even if the AU has its way

It is understood that AU chairperson Mr Hailemariam wrote to UN Secretary General Ban Ki-moon informing him that African states would reconsider their participation in international activities, such as the Somalia Conference, if the trials hinder Kenya’s ability to participate in them.

The EastAfrican has been told that if the African states fail to negotiate concessions now or at the UN General Assembly later this month, at the extraordinary AU Heads of State summit in Addis in October, they will consider withdrawing from the ICC en masse.

While this puts pressure on the ICC, the move by the AU member states will also raise questions about their commitment to ending the injustice and impunity that the ICC was set up to address.

Some 34 African countries have ratified the ICC Treaty and four out of the eight cases currently before the court were referred to it by African states.

Uganda was the first country to use the new court when it referred Joseph Kony and other leaders of the rebel Lord’s Resistance Army to the court in 2002. Permanent Secretary in the Foreign Affairs Ministry James Mugume defended the country against charges of double standards.

“Now Uganda has domesticated the Rome Statute and opened a special court to try war crimes, meaning Kony can be tried here. That is in line with the principles of the Rome Statute; of delivering justice for impunity but also fostering peace and reconciliation,” Mr Mugume told The EastAfrican.

“If Kony were tried by the ICC and imprisoned in The Hague, it would make some Western and a few other countries happy, but would that deliver justice to the people in Acholi who were victims of LRA atrocities?”

He added: “For some of us who participated in formulation of the Rome Statute, there were two key principles: Justice and impunity on the one hand and peace and reconciliation on the other. It seems some people have forgotten this. The West says it was Kenyans who in the first place took the case to ICC; yes, Kenya took the case there because they did not have structures [to try suspects and deliver justice at home]. But now they have. So why can’t they be allowed to handle the case at home?”

Civil society organisations representing the victims of the post-election violence say Kenya failed to establish a local mechanism to try the perpetrators and that the current efforts to undermine the ICC trials will perpetuate impunity and undermine justice and reconciliation.

Additional reporting by Tabu Butagira in Kampala