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

February 21, 2011

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.

UK Will Not Support Kenya’s Deferral Bid

February 16, 2011

The U.K.’s High Commissioner to Kenya has announced that the UK will not support Kenya’s bid for a deferral of the impending application for summonses against six Kenyans. See story here.

That means that there are now two permanent members of the Security Council opposed to Kenya’s deferral bid. The other is the United States as noted in a previous posting.

Only China has indicated its willingness to consider supporting Kenya’s bid among the permanent members of the council. See prior posting.

South Africa currently a non-permanent member of the Council has indicated its support for Kenya. See here.

In the meantime, President Mwai Kibaki is going ahead with the lobbying campaign in favor of the deferral. In the last few days he  met with Kenya’s Ambassadors in several key Western capitals for a briefing. See story here,  and here.

What is increasingly becoming clear is that the deferral bid is part of President Kibaki’s succession plan to sideline his coalition partner Prime Minister Raila Odinga from assuming the reigns of the Presidency in the 2012 campaign and instead to have a coalition led by William Ruto, Uhuru Kenyatta (who are both on O’Campo’s summonses applications) and Vice-President Kalonzo Musyoka. See related story here and here.

O’Campo Censured by Pre-Trial Chamber for Exposing Kenyan Suspects to Prejudicial Publicity

February 14, 2011

The writing is on the wall. The unprecedented announcement by O’Campo last December of six suspects he will be seeking summons against long before the ex parte hearings begin would raise fair trial questions. In its letter applying for deferral of the case to the Security Council, Kenya argued that the announcement of the six suspects had already unfairly prejudiced them. See story on the deferral letter here.  

Now the Pre-Trial Chamber has issued a ruling denying relief to participate in the Article 58(7) of the Rome Statute Ex Parte Proceedings sought by one of the six Kenyan suspects, (Mohammed Hussein Ali),  but in the process chiding O’Campo for having made the announcement to the press in the manner he did before seeking the summons. Said the three judges:

“The Chamber is cognizant of the concerns of the Applicant with respect to theprejudice suffered due to the public disclosure of his name made by the Prosecutor…While it is not the Chamber’s role to comment and advise the Prosecutor on his interaction with the press and media, the Chamber nevertheless is concerned if his actions have the potential to affect the administration of justice and the integrity of the present proceedings before the Chamber. In this respect, the Chamber expresses its deprecation regarding the Prosecutor’s course of action in the present case, as it has unduly exposed the Applicant to prejudicial publicity before a determination of the Chamber pursuant to article 58 of the Statute has even been made.” See ruling here.

In the meantime, opinion polls in the country continue to show majority support for Hague trials. See story here.

US Will Block Kenya’s Deferral Request at the ICC as Kalonzo Argues Deferral Would Affirm Kenya’s New Start

February 14, 2011

Outgoing US Ambassador, Michael Ranneberger, to Kenya has announced that the US will block Kenya’s deferral request when it comes to the United Nations Security Council. See story here and here.

In the meantime, Vice President Kalonzo Musyoka has continued to defend Kenya’s deferral bid as necessary to support the fledgling reforms under the 2010 Constitution and to protect Kenya’s sovereignty. See story here and here.

He denied that the deferral bid did not take into account the interests of post election violence and instead argued that the move was intended to promote reconciliation. See Musyoka’s statement to Parliament on his shuttle diplomacy in Africa seeking support for the deferral.

In an opinion piece in Sunday papers in Nairobi on February, 13, 2011, Kalonzo argued that “A deferral is simply an affirmation of Kenya’s new start and a chance to give our new institutions room to flourish. Deferral is not a permanent cessation of ICC action. It is only suspension for one year within which time, if no local mechanism has been set up, then the ICC process can continue.” Kalonzo further argued that the deferral bid was necessary because “All Kenya wants from the ICC is respect for the strides we have made since 2007/2008.”

Kenya Spent About $40,000 USD to Lobby for Deferral & Kenya Still Unwilling and Unable to Prosecute

February 9, 2011

Vice President Kalonzo Musyoka told Parliament yesterday that the Kenyan government spent close to $ 40,000 USD in the shuttle diplomacy to lobby African Union members to support Kenya’s bid to defer the issuance of summonses against six Kenyans. See story here.

That is an unjustifiably high amount of money particularly since the government has consistently failed to re-settle the hundreds of thousands of internally displaced Kenyans following post election violence in early 2008. The government is planning to spend even more money lobbying members of the Security Council for a deferral. This is yet another sign that Kenya’s ruling elites are putting their best interests ahead of those of ordinary Kenyans and particularly of the very victims of post election violence that the government has failed repeatedly by having no domestic effort or initiative to try these offenders.

In the meantime, the President and the Prime Minister remain deadlocked over nominations for a new Chief Justice and Attorney General. See stories here and here.

This deadlock which both have handed over to Parliament to resolve further casts a dark shadow over claims that Kenya would meet the test of complimentarity by having a credible local tribunal  as an alternative to the ICC under Kenya’s new Constitution. After all  no domestic tribunal has been set up or any investigatory mechanism for that matter. The impasse over appointments in the judicial system also clearly demonstrate that Kenya is still unable and unwilling to prosecute post election violence offenders.

South Africa Supports Kenya’s Bid for Deferral in the Security Council

February 8, 2011

Vice President Kalonzo Musyoka speaking in Parliament on Tuesday February 8, 2011 defended his shuttle diplomacy to convince African States to support Kenya’s bid for a deferral of the two pending ICC applications for summonses.

He told Parliament that South Africa, which is currently a member of the UN Security Council, will support Kenya’s bid when it comes before the Council.

The next several stops of this shuttle diplomacy, the Vice President told Parliament, were going to be to the permanent members of the Security Council.

See story here.

The US Does Not Support Kenya’s Deferral Bid

February 3, 2011

The US Deputy Secretary of State James Steinberg, on a visit to Kenya today, February 3, 2011 has announced that the U.S. does not support Kenya’s bid to have the Security Council defer two ICC cases against six Kenyans. According to Mr. Steinberg, “The US feels strongly that accountability is a critical element of making sure Kenya can move forward and deal with the past as well as build a strong future.” See story here.  

China is the only country likely to support Kenya’s bid for a referral if the issue comes before the Security Council.

African Union Writes to Security Council Seeking Deferral

February 3, 2011

Following the just concluded meeting of the African Union Heads of States and Governments, the African Union has written to the Security Council seeking a deferral of the request for summonses against the O’Campo six. See story here.

For an analysis of Kenya’s chances in getting a deferral, see analysis by Max du Plessis.

African Union Summit Unanimously Approves Kenya’s Deferral Request

February 1, 2011

The African Union Summit of Heads of States and Government that ended on January 31st, 2011 in Addis Ababa unanimously approved Kenya’s

bid to seek a deferral of two cases against six Kenyans at the ICC. See stories here , here, here  and here.  

President Kibaki told the summit that the deferral would: “will boost our efforts [for] peace, justice and reconciliation as well as uphold our national dignity and sovereignty; and prevent the resumption of conflict and violence.”

President Kibaki’s efforts on peace, justice and reconciliation may however be faltering. His nomination of an Attorney General, Director of Public Prosecution and Chief Justice have been declared unconstitutional by the Judicial Service Commission and the Commission on Implementation of the Constitution. Click here for the story.

The Prime Minister has also called the nominations unconstitutional since he like the Judicial Service Commission and the Commission on Implementation of the Constitution were not consulted. See story here.

The uncertainty hanging over these appointments is not surprising. Similar stalemates have forestalled the installation of a domestic tribunal to try post election violence offenders in the past.

The other reason Kibaki advanced in seeking support on deferral was that of protecting Kenya’s national dignity and sovereignty. That argument is also in bad faith for many reasons not least of which is it that it would legitimize not having to undertake the kind of investigation the Prosecutor is undertaking against those most responsible for post election violence in Kenya. That would only further the road towards impunity.

Finally, I see no relationship between preventing the resumption of conflict and violence in the country and ICC investigations or prosecutions. If this was the case, a domestic tribunal once set up could create the same dynamics that Kibaki fears the ICC process would set in motion resulting in further possible violence. This argument is tenuous at best.

The one argument Kibaki did not make but was made by the African Union’s Commission Chairman Jean Ping that O’Campo’s latest effort to seek sermons against individuals in yet another African country was further evidence of applying double standards against Africans. Ping has argued why not Argentina, Iraq, Mynammar? Why has O’Campo primarily focused on African countries such as Sudan, DRC, Uganda and now Kenya? See Ping’s comments.

In my view, at the end of the day the support African countries gave to Kenya’s deferral request has more to do with this sense of double standards than anything else. More on that in a future post.

There is of course an African Union precedent seeking Security Council deferral with reference to the arrest warrant for Sudanese President Bashir. The Summit of the African Union in 1999 supported the deferral. See related resolution.

This request was never acted upon by the Security Council. As a result, the Summit in its 13th Ordinary Session in 2009 “Decide[d] that in view of the fact that the request by the African Union has never been acted upon (by UN Security Council), the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.” This decision was reiterated (decision Assembly/AU/Dec. 296 (XV) by the 15th Ordinary session of the Assembly in July 2010 in Kampala, Uganda.

Here is a very thoughtful expert study on this growing question of deferral requests to the Security Council by Dapo Akande, Max Du Plessis and Charles Jalloh.

AU Executive Council Approves Kenya’s Deferment Request

January 31, 2011

On Monday, 31st 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 31st, 2011. For the Summit’s Agenda, see here.