In a letter sent to the United Nations Security Council (UNSC) last Friday, UN Permanent Representative Macharia Kamau asked the president of the Security Council to inform ICC Prosecutor Fatou Bensouda to end the proceedings as they were a threat to Kenya’s national security.
“It is obvious that their absence from the country may undermine the prevailing peace and any resultant insecurity may spill over to the neighbouring countries.”
He added: “There is nothing on record to justify that the continuation of the case is in the interest of justice or necessary for keeping of the peace in the republic,” the letter reads.
The message was supposed to be communicated on Tuesday when the UN Security Council was to meet Bensouda.
Describing the ICC proceedings as partial and a ‘manipulation from different actors,’ Kamau further complained that they were tarnishing the image of Kenya more so that of the president and his deputy.
In the request to have the two cases against the three halted, he explained that the court’s conduct in the Kenyan situation had raised eyebrows in the manner in which investigations were carried out, citing the withdrawal of evidence and prosecution witnesses.
“The proceedings are misplaced. The original claims might have been false and/or manufactured. There is nothing on record to justify the continuation of the cases in Kenya. Obviously, the prosecution advocated its duty of the Rome Statute by failing to undertake investigations and brought before the court testimonies made by coached witnesses,” Kamau asserted.
He further pointed out at withdrawal of charges against three persons who were being investigated alongside Kenyatta, Ruto and Sang as another indication that the court probably has the wrong persons being blamed for masterminding the 2008 post election violence in Kenya.
According to the ambassador, the prosecution did not establish the real financiers and organisers of the violence that left over 1,000 people dead, over 350,000 others displaced amidst loss of property worth millions of shillings.
“In light of the foregoing, it seems reasonable to assume that the court has the wrong people before it and it is a miscarriage of justice to continue trying them when the prosecution case is manifestly wanting,” Macharia added.
He argues withdrawal of charges against former Civil Service chief Francis Muthaura by the prosecution was regrettable as it took the court two years to acquit him of allegations levelled against him.
“A classic example of this lack of merit, legal locus or usefulness is the cruel and inhuman treatment that was meted out on Muthaura. After his indictment his reputation built over a long tenure of national, regional and international levels suffered a lot that will forever haunt him. After two years of unimaginable mental anguish, pain and torture, the prosecution unilaterally decided to drop this indictment stating there was no evidence to continue case against him,” Kamau decried.
He appealed for Kenya’s sovereignty to be respected as it had made strides through the adoption of the new constitution that has reformed institutions in view of the judicial reforms that have improved the local courts.
According to the diplomat, Kenya is in a position to handle the 2008 post election violence with the kind of reforms still being implemented.
“Kenya has the capacity to offer a home-grown solution. Clearly Kenya has made incredible, historic, even unprecedented strides in improvements of its governance system and institutions over the past 2 and half years,” he adds.
Whereas he called for support from likeminded countries, he asked the UNSC to help Kenya’s new administration to continue with its development agenda, “the incoming administration must and should be given a chance to start off without the yoke and burdens of the past fettering their actions.”
Kamau said burdening Kenyatta and Ruto with the ICC cases was denying Kenyans leadership and was a risk to peace of the country.
He said the two leaders have been at the forefront promoting peace and reconciliation and hence the court should leave them to continue with the responsibilities assigned to them by Kenyans.
“Nothing to justify continuation of the case is in the interest of peace and justice in Kenya. Kenyans in whom this sovereignty right rests spoke with a loud, clear and concise voice when they overwhelmingly elected Kenyatta and Ruto. We are therefore concerned that the court may or is being used to undermine the voice of Kenyans contrary to these very fundamental principles,” Kamau said.