AU Executive Council Approves Kenya’s Deferment Request

On Monday, 31^st of January, 2011, the African Union’s, (AU’s), Executive Council voted with approval a resolution to support Kenya’s bid to support a deferral of the impending cases against six Kenyans at the ICC. See story here.  

This makes the Executive Council the second body to support Kenya’s deferral bid. The AU’s Peace and Security Commission approved a similar resolution as noted in a previous post.  

Similarly another regional organization, the Inter-Governmental Association on Development (IGAD), has expressed its support for Kenya’s bid. See previous post.    

The Executive Council of the AU is established under Article 10 of the Constitutive Act of the African Union (which you can find here) comprised of Foreign Affairs Ministers and makes decisions by a two-thirds majority of the Member States. This suggests that there is strong support of the resolution that is now being considered by the Summit of Heads of States and Governments.

Clearly though the Summit has a full agenda on its hands and Kenya’s bid for a deferral is likely to be discussed under other business as the Summit winds down today Monday January 31^st, 2011. For the Summit’s Agenda, see here.

IGAD Supports Kenya’s Bid to Defer Cases

The Inter-Governmental Authority on Development, (IGAD), meeting on the sidelines of the African Union Summit yesterday endorsed Kenya’s bid to have the Security Council defer O’Campo’s impending request to have the ICC issue summons against six Kenyans. See story here

Kenya’s strategy not to have to be the one presenting the proposal at the AU Summit but to have it come from another country or organization has therefore come to fruition.

IGAD was created in 1996 to supersede the Intergovernmental Authority on Drought and Development (IGADD) which had been in existence since 1986. IGADD was created to coordinate the efforts of the Member States in combating desertification and promoting efforts to mitigate the effects of drought.  As such, the objectives of IGADD were mainly food security and environmental protection.  The founding members of IGADD are Djibouti, Ethiopia, Kenya, Somalia, Sudan and Uganda, with Eritrea joining in 1993 after attaining independence. 

IGADD, like its successor organization, IGAD, came to be used as a forum not just for dealing with drought and environmental issues but also as a forum for leaders of the countries to tackle emerging socioeconomic and political issues in a regional context.

Although IGAD’s has declared food security and environmental protection, conflict prevention, management and resolution; and economic cooperation and integration as its most significant areas of cooperation, this episode demonstrates Kenya’s propensity to use its weight within IGAD to propel its foreign policy goals.

Kenya has similarly used another regional body, the East African Community, (EAC). About three years ago now, Kenya successfully short-circuited the treaty amendment process in the EAC by successfully lobbying EAC member States, (Uganda, Tanzania, Burundi and Rwanda), to amend the Treaty Establishing the EAC to clip the wings of the East African Court of Justice after it made an adverse decision that Nairobi found intolerable. See analysis here  

IGAD is also one of the pillars of the African Economic Community since it signed the Protocol on Relations between the African Economic Community and the Regional Economic Communities in 1998. On IGAD and other African Regional Trade Agreements, see my forthcoming book, African Regional Trade Agreements as Legal Regimes. 

In the meantime, President Kibaki’s nomination of a new Chief Justice and Attorney General without consulting the Prime Minister, is one of the primary basis of his (Kibaki’s claim) that Kenya is prepared and willing to try post election violence offenders locally.  Vice President Kalonzo Musyoka’s whirlwind African tour to seek support for the deferral is widely regarded as having  outflanked his partner in the coalition government, Prime Minister Raila Odinga and the cabinet who were not consulted to see if they endorsed this strategy. See analysis here  

President Kibaki’s advisers go even further than simply arguing Kenya can handle the cases without the ICC. Peter Kagwanja, widely associated with crafting Kibaki’s anti-ICC agenda has argued in a recent editorial that the ICC is an alien court offering selective justice to a country that has not collapsed as yet. See analysis here. 

In the meantime, western governments continue to pressured the Kenyan government to reconsider its anti-ICC stance. See story here

African Union Peace and Security Commission Approves Resolution to Defer Kenya’s ICC Case

In a significant development on Friday, the African Union’s Peace and Security Commission approved Kenya’s bid to have two cases against

Six Kenyans including senior government ministers deferred by the Security Council.

Tanzania proposed the motion. It was seconded by Botswana and was apparently approved in a ‘resounding yes vote.’ See stories here, here and here

Efforts by Christian Wanawesar, President of the Assembly of State Parties to the Rome Statute to desuade the African Ministers from bypassing the ICC proved fruitless both in Addis Ababa where the meeting was held and in talks with President Mwai Kibaki and several cabinet Ministers in Nairobi prior to the Peace and Security Commission meeting as Nigeria declared it would consider favorably Kenya’s request. See story here.

The resolution now goes to the highest decision making organ in the African Union, the Summit of the Heads of States and Government. Its Sixteenth Ordinary Meeting commences tomorrow Sunday January  29^th, 2010.

Unfortunately, Kenya’s request to have the African Union endorse its Security Council request for a deferral is not in good faith. It is a ploy to protect its powerful ministers who may be summoned to the Hague. See my take here. See also here.

So far, Kenya has not established a domestic tribunal to try post election violence offenders undermining any claim that ICC trials are unwarranted because Kenya is willing and able to prosecute.

The Kenyan Executive is also split – while President Kibaki has not openly stated his support of a deferral, he has not disavowed the Vice-President’s declaration that his shuttle diplomacy to seek support of other African countries has his (Kibaki’s) blessings. However, the Prime Minister in Kenya’s coalition government has disavowed any endorsement of the deferral bid by the cabinet. See here and here.  See also here.

This split is also reflected in a related matter – President Kibaki’s announcement of a new Chief Justice and Attorney General without consulting the Prime Minister.

This appointments made on Friday January 28^th, 2011 two days before the African Union Summit meeting seems intended to convey the government’s commitment to judicial reform under the new Constitution. After all, it is a reformed judiciary, the Kibaki side of the government has argued that will try post election violence offenders.

The stakes are therefore very high – they threaten to split the Kenyan coalition government even further – but more importantly a united request for deferral by the AU Summit accelerates the agenda of impunity.

Even while better than a mass withdrawal of African States from the ICC, as was initial word on Kenya’s shuttle diplomacy, it would be a regrettable outcome. President Obama is sending an emissary to the AU Summit to help dissuade the passage of such a resolution. See here.

Sudan Unsurprisingly Backing Kenya

Sudan is unsurprisingly backing Kenya’s bid to have the African Union resolve to support a possible Security Council deferral of the case against six Kenyans in the Hague.

That is unsurprising given Sudan is not a party to the Statute and its President has an outstanding indictment and arrest warrant at the Hague.

See the story here.

Here is a rundown of countries that have declared their position on whether they support Kenya or not:

Botswana	NO
Ethiopia	YES
Rwanda	YES
Sudan	YES
Tanzania	not known
Zambia	undecided
Zimbabwe	YES
Libya	YES

Libya Latest Country to Support Kenya’s Deferral Bid

Libya has become Kenya’s latest supporter in its bid to request an ICC deferral from the Security Council.

Kenya Vice President Kalonzo Musyoka’s latest stop in his African shuttle diplomacy in Libya has therefore brought one additional African country in support of Kenya’s bid.

Like China though, Libya’s support of Kenya’s bid is not surprising. Libya has close ties to Kenya ruling elites who two years ago sold a five star Hotel built with public funds in Nairobi to a Libyan sovereign wealth fund at a bargain in a controversial secret deal.

Read the story on Libya’s support of Kenya.

Is China Backing Kenya’s Effort to Have Possible Indictments Deferred?

Kenya’s Ambassador to China meeting with President Mwai Kibaki is reported to have implicitly supported assertions by some members of the Kenyan government that possible indictments were an invasion of Kenya’s sovereignty by external forces.

See report here

President Mwai Kibaki’s foreign policy has been marked by a marked trend towards accelerating economic ties with non-Western economies in the former Eastern bloc.

It is not surprising that while Western envoys in Nairobi have expressed strong support for the ICC’s role in Kenya, (click here and here), China is going the other way. China’s strong ties to the Kenyan economy have not been tied to good governance criteria.

Recent Developments

Danish foreign affairs minister argues that justice can only be had through ICC process.
Denmark Cautions Kenya Against ICC Withdrawal

Kenya receives mixed response from African Union on effort to defer.
African Leaders Split on Bid to Defer Hague Trials, Daily Nation (27/1/11).

Internal Security Minister denies any Executive decision regarding deferral of suspects to ICC.
Lucianne Limo, Kenya Not Qutting Rome Statute, The Standard (25/1/11)

Human Rights Watch calls for African leaders to reject the move by some Kenyan officials to defer ICC cases against post-election violence suspects.
Kevin J. Kelly, Rights Watchdog Wants Africa to Reject Kenya’s Move Against ICC, The East African (25/1/11).

Discussion of the statutory implications of withdrawal from the ICC.
Kevin Jon Heller, Kenya Moves Closer to Withdrawing from the ICC, Opinio Juris (23/12/10).

Sorting the fact and fiction of Kenya’s and the ICC. Dapo Akande, Is Kenya Pushing for a Mass African Withdrawal from ICC?, EJIL:Talk!

Kenya’s move away from the ICC is not about colonization.
Charles C. Jalloh, Kenyan Parliament Endorses Ruto Motion Calling for Withdrawal from Rome Statute, International Criminal Law in Ferment (23/12/10)

Perspectives on Kenya and the ICC Process

The following links are critical to the discussion of Kenya and the International Criminal Court:

James T. Gathii, Kenya’s Credible Commitment to Keep its Date with the ICC, Working Paper (2010).

Human Rights and International Law Online Debate