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.
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 29th, 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 28th, 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.