Kenya’s Deferral Bid Unlikely to End Up on the Security Council’s Agenda

Although Kenya and the African Union have both written to the Security Council requesting a deferral, the Security Council has yet to place Kenya’s deferral request on the agenda. February’s Security Council Monthly Work Programme does not yet list Kenya’s request.

Under Rule Six of the Provisional Rules of Procedure of the Security Council, for an item to be placed before the agenda of the Security Council, it has to be brought to its attention by a communication by a Member State, an Organ of the United Nation or the Secretary General. In its entirety, Rule Six provides:

“The Secretary-General shall immediately bring to the attention of all representatives on the Security Council all communications from States, organs of the United Nations, or the Secretary-General concerning any matter for the consideration of the Security Council in accordance with the provisions of the Charter.”

At the moment, no member of the Council has requested the matter be placed on the agenda. Three African countries currently sit on the Security Council as non-permanent members. These are Gabon, Nigeria and South Africa. All three voted in favor of Kenya’s deferral request at the recent African Union Summit, but none has stepped forward to request the Council to consider the matter.

China which has previously expressed support for Kenya’s deferral bid assumes the Presidency of the Security Council in March and that may present Kenya an opportunity have the matter placed on the Council’s agenda. However, as I note below, that is unlikely to happen.

The last time the Security Council took up Kenya’s post election violence was on 6th February, 2008. In a Presidential Statement, the Council expressed ‘deep concern’ about the post election violence and encouraged dialogue, reconciliation and compromise to prevent its escalation. Most significantly, the Statement called for those responsible to be “brought to justice.” See statement here.

Assuming Kenya’s request does get on the Security Council’s agenda, it cannot demonstrate that it has brought those responsible for the 2008 post election violence to justice. The coalition government of President Mwai Kibaki and Prime Minister Raila Odinga are currently deadlocked on nominees for Chief Justice and a Deputy Public Prosecutor. See analysis of the deadlock here

Since Kenya’s deferral request is primarily predicated on its ability to conduct credible domestic prosecutions under the new Constitution, the current stalemate within the government to begin reforming the judiciary substantially undermines its deferral bid. Indeed, even if these judicial appointees were agreed upon, setting up a credible local tribunal to try post election offenders would take several months. That together with threatened vetoes by the US and UK and the lack of support by the African delegations to the Security Council substantially reduces the likelihood of Kenya’s deferral bid ending up on the Council’s Agenda.

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