An Open Memo to Kenya Cabinet Secretary – Foreign Affairs

To: Ambassador Amina Mohammed

Subject: Response to your Press Statement of 15 October 2013

You said:

“On behalf of the country, let me say from the beginning that we were extremely humbled and are very grateful for the unparalelled, unprecedented and unwavering support that we received from our continent. In one accord, both the Council and the Summit stood with Kenya on the key questions of the day, showing a solidarity and grip of the major issues that Africa must address in its relations with the International Criminal Court as well as other partners.” 

Not accurate! African champions of human rights and Nobel Peace Prize Laureate like Archbishop Desmond Tutu successfully rallied about 1 million signatures in a global petition to oppose this misguided action. The civil society in every African country signed a petition presented at this summit opposing any move for deferral. The Panel of Eminent Africans created by the same AU, led by another Nobel Peace Price Laureate and former UN Secretary General Kofi Annan, and others like Graca Machel, President Benjamin Mkapa, President Chissano, all oppose these justice-subversion shenanigans. Needless to state, and most important — millions of Africans and Kenyan citizens oppose any move aimed at sanctioning impunity for any criminal, be they Presidents, Deputy Presidents, Ministers, MPs, Chiefs, or ordinary citizens alike. There should be no special class of human beings above the law. That’s how genocide can be fertilized.

You said:

Unanimously, the Council and Summit recognized that a sitting Head of State democratically elected, and with a clear mandate from the Kenyan people, must govern. That is what Kenyans expect. That is what Africa expects. It was also clearly stated over and over again that sitting Heads of State and other senior State Officials are granted immunities during their tenure of office. That has always been and remains the practice today even as we speak.

Wrong! Article 143(4) of the brand new Kenyan constitution, specifically prohibits the president’s immunity from criminal prosecution for “crime[s] for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.” The Rome Statute is such a treaty and Kenya remains a state party. It is part of our Constitution, and that is why many Kenyans and many across the world are dismayed by Kenyatta’s selfish move to mutilate the new Constitution. Kenyatta has incited the Jubilee-dominated legislature to mutilate this section from the Constitution – by pulling the entire nation (Kenya) out of the Rome Statutes to specifically grant himself immunity from criminal prosecution.

The last contested election outcome should not be used as a basis for rubbishing individual criminal responsibility of the defendants at the ICC. Kenyatta and Ruto campaigned for elected office on pledges to continue their cooperation with the ICC. What was that lie for?

You said:

Africa was unequivocal about its commitment to fight impunity, promote human rights, the rule of law, good governance and democracy on the continent in accordance with the constitutive act of the Union. The continent confirmed its intention to ensure that the Rome Statute, which the majority of its members are party to, is modified by the Assembly of State Parties beginning November, to respond to the aspirations of its largest constituency for a court of last resort of the highest possible standards and standing. Accordingly, and to ensure that the continent rises to its responsibilities and addresses the concerns of its people the AU Commission was mandated to urgently pursue the expansion of the mandate of the African Court of Human and People’s Rights to deal with crimes that fall in the category of International Crimes.

Charity begins at home. What has the Kenya government done to “fight impunity, promote human rights, the rule of law, good governance, and democracy”? In the more than five years since the post-election violence, what has Kenyan authorities delivered in terms of justice – both regarding small fish, medium fish, big fish, and the police who were deeply involved in civilian killings?

There is absolutely no political will to prosecute those who burnt the church at Kiambaa –if the same fella who lit it on fire (Stephen Chemalan) is now a URP elected County rep of the same area. People are not all stupid. There would be no justice if the government’s mantra has been “let’s move on”. Since the Jubilee government is more committed towards withdrawing Kenya from the ICC, why pretend you want to reform/modify an institution you want to move out of? Not all Kenyans are idiots. This misguided attempt to insert political solutions into a judicial process further undermines the interest of victims.

Specifically and in addition, you will be aware that the summit

·       Decided that no charges shall be commenced or continued before any International Court or Tribunal against any serving Head of State or Government or anybody acting or entitled to act in such capacity during his or her term of office

(Thanks for letting the world know Kenyatta will not attend his trial at the ICC). 

·       Agreed that, to safeguard the constitutional order, stability and integrity of member states, no serving AU Head of State or Government or anybody acting or entitled to act in such capacity, shall be required to appear before any international court or tribunal during their term of office. 

 (Thanks for letting the world know about this official embrace of self-entitlement, the big-man syndrome, and impunity).

·       That, accordingly, the trials of President Uhuru Kenyatta and Deputy President William Ruto, be suspended until they complete their terms of office

(In other words, according to this wish-dream Kenyatta would be ready to go to court in 2023, and Ruto in 2033? Then what is Ruto already doing at the Hague? Where do victims rights’ fall in all these? Would there be any surviving witness left to testify for the OTP? )

·       Requested the ICC to postpone the trial of President Kenyatta and suspend proceedings against Deputy President Ruto until such a time as the United Nations Security Council pronounces itself on Kenya’s request for a deferral

(Doesn’t this contradict your earlier statement?)

·       Decided that President Kenyatta will not appear before the ICC until such a time as the concerns raised by the African Union and its member states have been adequately addressed by the Security Council and the ICC.

(Isn’t this even more contradictory?)

You said:

“What does this mean for Kenya and the President and Deputy President? Let me make the following points clear.
First Kenya has from the beginning fully cooperated with the ICC and conformed to the Rome Statute without ever deviating from its obligations. Both the President and the Deputy President have continuously and without fail attended court sessions and argued their cases fully.”

The Office of the Prosecutor (OTP) has repeatedly stated that Kenya has stalled and refused to cooperate with ICC on collecting evidence from police and provincial administration bosses, on accessing security meeting briefs and in asset and property identification processes. It is currently delaying the handing over of Barasa who has an arrest warrant issued by the same court.

You said:

“Second As you know our Deputy President is currently at The Hague to ensure that, even as we await for the processing of Africa’s request for a deferral, due process is not in any affected.”

WE ASK: Why can’t Kenyatta emulate his deputy? Why all this hullabaloo then?

You said:

Third The President’s case is due to begin on November 12th 2013 – in a month’s time. The AU made requests to the Security Council, first under paragraph 9 (iii) for a suspension of the proceedings until the end of the terms in office of the President and his Deputy. The AU asked that the trial of the President and the proceedings against the Deputy President be suspended, until such a time that the Security Council considers the request for deferral. It was also decided that the President should not appear before the court until the concerns raised by the AU have been adequately addressed by the Security Council and the ICC.
Thank you.

CONCLUSION: The salient point of Kenyatta’s planned absconding can’t be clearer than this.

By Dr. Job Oduor http://deepcogitation.com/2013/09/10/icc-trial-thread/#comment-8637