The Permanent Mission of the Republic of Kenya presented to the United Nations and to all the Permanent and Observer Missions to the United Nations an Aide Memoire titled “Kenya’s Reform Agenda and Engagement with International Criminal Court (ICC)”.
Kenya’s Vice-President, H.E. Kalonzo Musyoka is scheduled to meet the UN Secretary General on February 28, 2011 to discuss the Aide Memoire, alongside the Communiqué of the 17th Extra-Ordinary Session of the IGAD Assembly of Heads of State and Government on Sudan, Somalia and Kenya, and the African Union Decision on the Implementation of the Decisions on the International Criminal Court on the deferral/referral of the Kenyan Cases at the ICC.
It is important for the UN Members, the Security Council and Secretary-General to have a complete view of the situation in Kenya before making any conclusion on the Aide Memoire. This petition presents a set of incontrovertible facts which will help interested parties to understand why the Kenyan Cases at the ICC should neither be deferred nor referred. These facts justify the ICC process.
Fifteen Reasons Why the Kenyan Cases at the ICC must neither be Deferred nor Referred:
• The prosecution of the Kenyan Cases at the ICC does not pose any threat to international peace and security. To the contrary, failure to bring to justice the perpetrators of post-election violence poses grave danger to Kenya’s internal peace and security.
• The ICC process was unanimously approved by the two parties under the Annan-brokered National Accord, and the instruments that paved the way for the process were signed by both the President and the Prime Minister for and on behalf of their respective political parties.
• The great majority of Kenyans support the ICC process as the most credible method to fighting entrenched impunity in their society. Surveys by leading institutions in the country confirm this position.
• Local trials will be exposed to:
o political manipulation by leaders pleading the ethnic card;
o threats to witnesses, their families and friends. Indeed, many witnesses have been hunted and killed by State security agents; and
o undue delays engineered by frivolous and vexatious applications.
• Local trials are not possible at the moment as there is no local mechanism in place to handle the cases. Any such local mechanism must meet the ICC standards for such trials. Kenya’s judiciary does not meet such standards.
• The judicial reforms contemplated under the New Constitution have not been implemented. The judges have not been vetted. The Prosecution Service has not been reformed.
• Local trials will be used to shield the suspects from justice. This was recently demonstrated by the nominations of Mr. Githu Muigai and Mr. Kioko Kilukumi to the positions of Attorney-General and Director of Public Prosecutions respectively, while they are on record as lawyers for two ICC suspects. In addition, an ICC suspect chaired the Panel that identified and nominated Justice Visram to the position of new Chief Justice.
• Since 1992, each general election has been characterized by state sponsored and people-to-people violence leading to deaths, evictions, rapes, arson, etc. While there have been official judicial inquiries on these mass murders, rapes, arson and evictions, no prosecutions have been conducted.
• Extra-judicial killings have increased significantly since 2003. The United Nations Special Rapporteur on Human Rights has investigated and made his findings (Prof. Alstom). No prosecutions have been conducted.
• Kenya’s Parliament has on two occasions rejected Bills for the establishment of a local tribunal for the cases, and instead declared that the trials should be held at the Hague.
• Unless the cases are prosecuted to the end, the 2012 general elections will not be different and the violence may be unprecedented.
• Given the limited time between now and the next general elections in August 2012, local trials will take the country’s attention from critical and still pending reforms in the electoral system, police and judiciary.
• The request for deferral/referral has been made by one side of the Coalition Government. It is not a joint request of the Coalition Government. As such there is no national unanimity on the issue.
• The request for deferral/referral is intended, if granted, to provide enough lead time for snap general election in which it is planned that two of the ICC suspects will run and win on a joint ticket as President and Vice-President. Election to such high office, it is hoped, will protect the suspects from accountability at the ICC or at any other forum. Because such a ticket must win at all costs, the consequences to Kenya’s peace and security will be grave.
• Unless perpetrators of post-election violence are held to account, the idea of free and fair elections will lose meaning to Kenyans. Their faith in democracy will be irreparable eroded.
We therefore appeal to you to allow the Kenyan Cases at the ICC to proceed without any delays. Let there be justice for the suspects as well as for the victims.