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Why Kenya Is Determined To Stop ICC Cases

23 Nov

Uhuru-Amina1

In my column this week Why Kenya Is Determined To Stop ICC Cases, I offer my theory as to why the president and his team wants the case against him deferred, referred or altogether terminated.

Excerpt:

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 former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular 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 failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

By abstaining, the US and other seven members of the Security Council who are also signatories of the Rome Statute, sent a clear message: We hear you Kenya; we sympathize with you but in balancing the needs of the post-election violence victims, we have to see you doing more before we can throw our weight behind your request, not necessarily for a deferral, but other ways to bring these cases to an end to everyone’s satisfaction in the name of national peace and reconciliation.

Meanwhile, the UK is pushing for a compromise to have the ICC amend its rules and make it possible for the President to appear via video. While allowing this is a win for the President, it may not be enough.

Put another way, even though this will be good for the President, it will not array the President’s concerns that appear to be at the core of this dogged determination to terminate or refer the cases back home for a local solution, and that’s a penchant for some to have the President nailed at the ICC simply for being Uhuru Kenyatta and for no other reason.

This is not an unfounded fear or concern for the former OTP himself, Luis Moreno Ocampo is on record as having said he wanted these Kenyan cases to be an example of how the ICC can bite, having failed to do so in the last 10 years of existence save for one or two major cases.

No one would want to be a guinea pig for a prosecutor bent on inflicting pain simply as an example for others. One can therefore understand why the President would go to all lengths to make sure that doesn’t happen.

In other words, ICC is no longer about finding justice for the victims as many wrongly assume and believe; rather the process is now about whether an ICC faced with prosecuting cases that don’t belong there to begin with can do so and render a verdict that can be deemed all around fair and just, everything considered.

It cannot and thus the reason it’s preferable to terminate or refer the cases back home for a local solution where at least some justice can be achieved for the victims as opposed to none at all at the ICC.

By abstaining, the US and other seven members of the Security Council who are also signatories of the Rome Statute, sent a clear message: We hear you Kenya; we sympathize with you but in balancing the needs of the post election violence victims, we have to see you doing more before we can throw our weight behind your request, not necessarily for a deferral, but other ways to bring these cases to an end to everyone’s satisfaction in the name of national peace and reconciliation. – See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

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 former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular 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 failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

– See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

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 former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular 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 failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

– See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

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Posted by on November 23, 2013 in Law, Politics

 

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