The Star (Nairobi)
The African Union Summit will today consider a draft resolution calling on African states to withdraw from the International Criminal Court.
African foreign ministers were expected to review the draft last night before bringing it for the African presidents to discuss over the next two days.
President Uhuru Kenyatta was expected to arrive in Addis Ababa last night for the start of the 21st AU Heads of States Summit.
The draft resolution by Uganda and South Sudan requires the AU Commission to expand the jurisdiction of the African Court of Human and Peoples Rights and the African Union Commission on the International Law to deal with the international crimes and crimes against humanity.
The resolution, circulated among the delegates on Wednesday, wants the AU to unequivocally declare whether or not it will work with the ICC.
It seeks to affirm Africa’s sovereignty with the sponsors arguing that the ICC is threatening the independence of African states.
It explicitly states that the indictment of President Uhuru Kenyatta and Deputy President William Ruto will pose major problems in promoting peace and reconciliation in Africa.
The draft resolution apparently has the blessing of the Kenya government although it does not wish to be seen to be driving the resolution.
Kenya circulated an informal aide memoire to the delegations for consideration.
In the aide memoire, Kenya accuses the ICC prosecutor of contradicting the sovereign will of the people of Kenya as expressed in the March 4 elections.
“The Kenyan case demonstrates an Office of the Prosecutor pursuing a weak-and-weakening case that runs counter to peace and security all to ‘make Kenya an example to the world’ according to the prosecutor’s repeated pronouncements – even before the commencement of the case,” states the aide memoire.
The draft resolution was set for debate before the AU Summit yesterday. It calls on the assembly to reaffirm its previous decisions on the ICC in Africa since January 2009.
Previously, the AU has “expressed its strong conviction that the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace and reiterated AU’s concern with the misuse of indictments against African leaders.”
If the ICC trials proceed, the AU members want them conducted in a transparent and fair manner, to avoid any perception of double standards.
The African states are angry that the UN Security Council ignored the AU request to defer the ICC trials against Sudanese President al-Bashir and the Kenyan leaders.
Ruto’s whirlwind trip last weekend was apparently to lobby the leaders of Congo Brazzaville, Nigeria, Gabon and Ghana to back the draft resolution.
The resolution also says that Kenya should have the primary jurisdiction over the investigations and prosecutions of crimes related to the 2007 post-election violence.
“In this regard, (the Assembly) deeply regrets the Decisions of the Pre-trial Chamber II and the appeals Chamber of the ICC on the admissibility of the cases dated 30 May and 30 August 2011 respectively, which denied the right of Kenya to prosecute and try alleged perpetrators of crimes committed on its territory in relation to the 2007 post-election violence,” states the draft.
Referring the case back to East Africa would allow Kenya to establish a “national mechanism to investigate and prosecute the cases under a reformed Judiciary provided for in the new constitutional dispensation, in support of the ongoing peace building and national reconciliation processes, in order to prevent the resumption of conflict and violence in Kenya.”
According to the Rome Statute, cases that are before the ICC cannot be withdrawn until they have been concluded. This means that the Kenya cases will continue irrespective of whatever happens in Addis.
Kenya’s UN Permanent representative Kamau Macharia wrote to the Security Council on May 10 demanding that the cases against Uhuru, Ruto and Sang be terminated. Macharia’s application was scheduled to be heard last night.
Yesterday, the Kenyans for Peace Truth and Justice petitioned the UN Security Council to reject the application.
“By calling for the termination of these cases, he clearly demonstrates that the Kenyan government, far from cooperating with the ICC, totally rejects the legitimacy of the ICC’s involvement in Kenya. This undermines any basis for possible future requests for deferral of the Kenya case, as any such request could only be aimed at frustrating the ICC engagement in Kenya,” said the petition signed on behalf of KPTJ by Gladwell Otieno.
Yesterday the Security Council agreed that they should hear Kenya out.
“Some Council members also have strong views on the legal impossibility of the Council terminating an independent judicial proceeding. Some Council members expect that during the dialogue, Kenya will limit its request to an Article 16 deferral given the legal and political backlash it received on its request to terminate the proceedings,” said a statement by the Security Council. star