Why Is Kenya Doggedly Pursuing ICC Deferral?

15 Nov


Former president Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred.

These efforts were led by now former vice president Kalonzo Musyoka and as we know, the efforts failed.

That was Round I.

Round II got underway a few months ago this time flagged off by President Uhuru Kenyatta but headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat before assuming the portfolio unlike Kalonzo who mostly learned the intricacies of the trade on the job as minister for foreign affairs, save for a stint as a participant in the Sudan peace process.

With her background, and in particular Amina having worked at the UN Security Council as Legal Advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately–or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have not been successful on a very interesting UNSC vote: 7 members voted in the affirmative, 8, including the US, abstained.

I mention the US by name because if Kenya or any country seeking a deferral were to succeed, they must have the US on their side.

France and Britain will always follow the US lead and vote accordingly; Russia and China, the other two permanent members of the council with veto power will usually go along unless it’s something that directly or indirectly threatens their strategic and business interests.

The rest of the 15 member states of the UNSC will usually follow whichever country they have closer strategic ties with among the permanent members.

One needs the support of 9 members of the 15 UNSC members to have a resolution passed but only if no member with veto power votes no.

With the US having always taken a very hostile stance against anything favoring the Ocampo Six and and now Bensouda 3, it was inevitable even our fine and accomplished Amina could not pull this one to the win column but the potential was and still remains there; well some aspect of it as I noted in my Star column this week.

Why then, even against these odds, does Kenya continue to pursue the deferral and/or termination of these cases?

I have my theories and think I know to near certainty but let me keep those to myself for now as I hear what others have to say.

I will say by way of hinting it can’t be for naught neither is it an exercise in futility nor one being naively pursued.

In my column this weekend, I’ll address part of this question and provide a complete analysis in a future column.

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Posted by on November 15, 2013 in Law, Politics


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