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
