Kenya’s ICC deferral on UN agenda

April 8, 2011 12:00 am

, NAIROBI, Kenya, Apr 8 – The United Nations Security Council (UNSC) is set to hold discussions on Friday on Kenya\’s request for a deferral of the International Criminal Court (ICC) cases against the Ocampo Six.

The UN meeting comes barely hours after all the six suspects made their first appearance at the court which set September 1 as the date for hearing of confirmation of the charges.

In its programme of meetings and agenda, the Council will consider a letter written by Kenya through its UN ambassador Macharia Kamau that requests for deferral of the Kenyan case before ICC for one year.

On March 18 there was an informal meeting in which the ambassador met with some members of the Security Council during which he informed them of the situation and why the country needed the deferral.

During the informal meeting, the French envoy at the UN Gerard Araud told reporters after a three-hour interactive dialogue meeting in New York that started at 3pm (10pm Kenyan time) that "the conditions of the implementation of Article 16 are not fulfilled."

He was referring to Article 16 of the Rome Statute that established the ICC, which allows the UNSC to issue a one-year suspension if there is a threat to international peace and security.

Other diplomats elaborated by saying that the situation in Kenya did not constitute a threat to international peace and security to warrant UN intervention.

Mr Araud suggested that the government should seek to challenge the ICC\’s jurisdiction and the admissibility of the case in line with Article 19 of the Rome Statute.

France is a veto-wielding Permanent Member of the Council.

Vice President Kalonzo Musyoka who led Kenya\’s shuttle diplomacy to have the case deferred wound up his special mission about two weeks ago with a briefing to AU Chairman, President Obiang Nguema of Equatorial Guinea and President Ali Bongo of Gabon which is a member of the UN Security Council.

On arrival from the two-day mission on March 27 to the West African Nations, Mr Musyoka who was accompanied by Minister Njeru Githae and Assistant Minister Wilfred Ombui said Kenya now awaits  the decision of the UN Security Council, but expressed confidence that the Post Election Violence cases would be heard in the country.

"As a government we are following a two-pronged approach through either deferral under Article 16 or referral under article 19 of the Rome Statute and we are optimistic that the cases would be heard under a local mechanism," he had said.

Mr Musyoka said it was important to brief the AU chairman because Kenya has presented to the UN Security Council the resolution of the AU Heads of State and Government Summit endorsing the country\’s request.  

He said both Presidents Nguema and Bongo were categorical that Kenya should be supported to start a local mechanism to try the perpetrators of the PEV while the ICC retained its complementary role of a court last resort.

The Vice President welcomed the decision by the ODM faction to support local trials saying that it was necessary for the country to speak in one voice.

But during the March 18 meeting sources said that even African countries sitting on the council \’lacked enthusiasm" to endorse Kenya\’s request, despite the African Union resolution in January backing a deferral.

"The dialogue took place after strenuous diplomatic efforts and exposed the deep political cracks in the coalition government as well as the International community on the deferral issue," Kenya\’s Permanent Representative at the United Nations ambassador Kamau had told Capital News at the time.

Mr Kamau who has been leading the delegation said: "The matter is now left to the council to decide how it may or may not consider it further."

Sources said while 13 of the 15 member states at the UNSC sent their top or deputy ambassadors, the US and Russia sent lower level diplomats.

The deferral bid has been faced by different challenges from coalition partner Orange Democratic Movement, the civil society and the western countries.

ODM has already written to the UN Security Council opposing the deferral.

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