Rights groups oppose ICC deferral bid

January 27, 2011 12:00 am

, NAIROBI, Jan 27 – Kenya\’s bid to delay international criminal proceedings against top officials accused of a role in deadly 2008 post-poll unrest faces legal hurdles and objections from rights groups.

The International Criminal Court has accused Finance Minister Uhuru Kenyatta and other top political players of engineering Kenya\’s worst post-independence violence, which claimed more than 1,500 lives.

Vice President Kalonzo Musyoka has visited several African countries to lobby leaders to seek the African Union\’s endorsement at a summit this weekend of a request for the UN Security Council vote to defer the cases.

Under the Rome Statute that established the ICC, the Security Council can ask the Hague-based tribunal to halt any proceedings for a year.

However the UN charter stipulates that this can only be done in exceptional cases of a serious threat to, or breach of, international peace – none of which applies to the ICC\’s Kenyan case.

"There is no indication that the ICC investigation in Kenya is detrimental to international peace and security," Human Rights Watch said.

"Indeed, impunity for past episodes of post-election violence is widely believed to have contributed to the violence that followed the 2007 election," it said.

Mr Musyoka, who has said he has been holding talks with African leaders on behalf of President Mwai Kibaki, argues that a deferment of the cases would allow Kenya to set up local courts to try the suspects.

ICC prosecutor Luis Moreno-Ocampo on December 15 named Mr Kenyatta, the son of the country\’s founding president Jomo Kenyatta, as well as Kibaki\’s close aide Francis Muthaura and former police chief Mohammed Hussein Ali as top suspects.

Others include Henry Kosgey, a member of Prime Minister Raila Odinga\’s party, suspended minister William Ruto and a radio presenter Joshua arap Sang.

They have all denied causing the unrest but have pledged to cooperate with the ICC.

Kenyan lawmakers have however twice rejected efforts to set up a local tribunal to try perpetrators of the violence, which also displaced more than a quarter of a million people, arguing that such a court would be prone to political manipulation.

"The Kenyan government has taken no real action on national trials and the special tribunal has not been created," said a statement by 51 African rights groups.

"Credible national trials for those responsible for the post-election violence would be welcome… But domestic trials should not be used to derail or defeat the ICC process," it said.

Soon after Moreno-Ocampo released the names, Kenyan MPs passed a non-binding motion to withdraw from the ICC. Nairobi has however not taken any formal steps to pull out of the Rome statute, and even if it did, the decision would not affect cases predating its withdrawal.

"Withdrawal now would signal the intention to side with the perpetrators of Kenya\’s post-election violence rather than its victims," said the right groups.

New York-based Human Rights Watch said Kenya could challenge the ICC move on the basis it was willing to take up the cases itself.

However, "Under the ICC\’s existing case law, there must be genuine national proceedings encompassing both the person and the conduct that is the subject of the case before the ICC," it said.

The vice president\’s lobbying has been rejected by Odinga, who said it had not been discussed by ministers and the country did not need the African Union\’s assistance.

The 53-member body has previously requested the UN Security Council defer cases against Sudan\’s war crimes-accused President Omar al-Bashir – without success.


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