BY ANYANG NYONGO
It is my pleasure and privilege to refer to the ongoing International Criminal Court proceedings relating to Kenya and the deferral request made by a section of the Government of Kenya to the United Nations Security Council.
The Permanent Mission of the Republic of Kenya presented to the United Nations and to all the Permanent and Observer Missions to the United Nations an Aide Memoire titled “Kenya’s Reform Agenda and Engagement with International Criminal Court (ICC)”.
Kenya’s Vice-President, H.E. Kalonzo Musyoka has led a delegation to the UN Secretary General to discuss the Aide Memoire, alongside the Communiqué of the 17th Extra-Ordinary Session of the IGAD Assembly of Heads of State and Government on Sudan, Somalia and Kenya, and the African Union Decision on the Implementation of the Decisions on the International Criminal Court on the deferral/referral of the Kenyan Cases at the ICC.
It is important for the UN Members, the Security Council and Secretary-General to have a complete picture and understanding of the situation in Kenya before making any determination on the Aide Memoire from President Kibaki.
This petition presents a set of incontrovertible facts which will assist The Security Council and other interested parties to understand why the Kenyan Cases at the ICC should neither be deferred nor referred. These facts justify why the ongoing ICC process is the best and only means of securing justice to the innocent victims of Kenya’s post election violence of 2007/8.
It is imperative to underline the fact that the institutions, groups and individuals that were allegedly involved in the planning and execution of the crimes against humanity during the 2007/8 post-election violence in Kenya continue to operate unfettered and occupy important positions of power within and outside government.
Sixteen Reasons Why the Kenyan Cases at the ICC must neither be Deferred nor Referred to Kenya:
• The prosecution of the Kenyan Cases at the ICC does not pose any threat to international peace and security. To the contrary, failure to bring to justice the perpetrators of post-election violence poses grave danger to Kenya’s internal peace and security.
• The ICC process was unanimously approved by the two parties under the Annan-brokered National Accord, and the instruments that paved the way for the process were signed by both the President and the Prime Minister for and on behalf of their respective political parties, which form a coalition.
• The great majority of Kenyans (more than eighty per cent) support the ICC process as the most credible method to fighting the culture of impunity in Kenya. Surveys by leading institutions in the country have repeatedly confirmed this position.
• Local (Kenyan) trials will be exposed to:
o political manipulation by leaders pleading the ethnic card;
o Threats to witnesses, their families and friends. Indeed, many witnesses have been hunted down and killed by State security agents; and
o Undue delays engineered by frivolous and vexatious applications.
• Local trials are not possible at the moment as there is no national judicial mechanism in place to handle the cases. There have been no investigations and prosecutions since the crimes were committed more than three years ago. Moreover, the criminal justice system has not been reformed to enable it to handle the cases. Although Kenya has enacted the International Crimes Act, it is in doubt as to whether Kenyan courts have jurisdiction over the international crimes committed before January 2009 when the Act became operational.
• The judicial reforms contemplated under the new Constitution have not been implemented. The judges and magistrates have not been vetted. There is no independent prosecutorial authority.
• The involvement of the ICC was necessitated by Kenya’s rejection to establish a national judicial mechanism to deal with the crimes committed. In fact, the Government of Kenya repeatedly made verbal and written commitments to cooperate with the ICC and indicated that if it was unable to prosecute the perpetrators of the 2007/08 post election violence by September 2009, the ICC should do so. Those written and public commitments were made by the Government to the ICC Prosecutor both at The Hague and during his official visits to Nairobi.
• Local trials will be used to shield the suspects from justice. This was recently demonstrated by the nominations of Mr. Githu Muigai and Mr. Kioko Kilukumi to the positions of Attorney-General and Director of Public Prosecutions, respectively, while they are on record as lawyers for two of the ICC suspects. In addition, an ICC suspect chaired the Panel that identified and nominated Justice Visram to the position of new Chief Justice.
Although President Kibaki was forced to withdraw his nominations through public outcry, a court order and stinging resolutions of the National Assembly Speaker, the Judicial Service Commission, the Commission on the Implementation of the Constitution, the Law Society of Kenya, the Federation of Women Lawyers and nearly all Kenyan civil society groups; it demonstrated the extent to which President Kibaki’s Party of National Unity and the six individuals summoned by the ICC would go to defeat the cause of justice.
• The request for a deferral of the Kenyan cases pending before the ICC has been made by one side of the Kenyan coalition government, namely the Party of National Unity headed by President Mwai Kibaki. The Orange Democratic Movement headed by the Prime Minister Raila Odinga, does not support that request.
• Because of the significant positions held in and influence the suspects wield within Government, they are the ones spearheading the deferral request as a means of defeating the cause of justice. Ultimately, the six suspects the ICC has summoned intend to use the deferral, if granted, as the basis of perpetuating the culture of impunity in Kenya.
• The deferral request should therefore be seen as evidence that the Party of National Unity and President Mwai Kibaki are both unwilling and unable to prosecute the six suspects for the crimes alleged by the ICC.
• Since 1992, each general election has been characterized by state sponsored violence and ethnic cleansings leading to mass deaths, evictions, rapes and arson. While there have been official judicial inquiries on these crimes, no prosecutions have ever been conducted, and no culprits have been punished.
• Extra-judicial killings have increased significantly since 2003. The United Nations Special Rapporteur on Human Rights, Prof. Philip Alston has investigated and made far-reaching findings and recommendations. However, the Government has not taken any action.
• Both the Cabinet and Kenyan Parliament have on more than two occasions rejected Bills for the establishment of a local tribunal for the cases and instead declared that the trials should be held at The Hague.
• The ICC process is the only opportunity that Kenyans have to break the culture of impunity and the circle of elections-related violence.
• In view of the foregoing the request for deferral does not qualify or merit consideration by the UN Security Council within the provisions of Article 16 of the Rome Statute, or through any other provisions. This is particularly the case because the Kenyan Situation at the ICC was not originated by a referral by the UN Security Council. Consequently, the request for a deferral is an unwarranted interference with the Court’s mandate, its independence and impartiality.
We therefore submit that the request for a deferral by a section of the Kenyan Government be rejected as being incompetent and frivolous.
On behalf of the Orange Democratic Movement and the Prime Minister of the Republic of Kenya, The Rt. Hon. Raila Odinga, EGH, MP, I would like to request you to bring this letter to the attention of all Council Members of the Security Council and to have it issued as a document of the Council, as a matter of great urgency.
Please accept, Your Excellency, the assurances of my highest consideration.
(Anyang\’ Nyong\’o is the Secretary General, Orange Democratic Movement)