ODM may have sunk deferral bid

March 14, 2011 12:00 am

, NAIROBI, Kenya, Mar 14 – A letter sent by the Orange Democratic Movement to block the Security Council from a likely deferral of Kenya\’s ICC case is likely to dent the country\’s request and even complicate the bid, an international law expert said on Monday.

Lawyer Godfrey Musila told Capital News that Kenya required unity of purpose to strengthen and sustain its argument.

Dr Musila observed that even though the country got backing from the African Union, the letter by ODM\’s Secretary General Anyang\’ Nyong\’o provides a viable excuse for a section of the permanent council members, who have been against it, to veto the application.

"One of the things the Security Council will be looking at, perhaps even before they look at whether we meet the request for a deferral or not, is whether the government is united behind this position. And that development is likely to sway an already difficult case firmly in the direction of a no deferral," he said.

Dr Musila further discounted arguments, made by some individuals, that the ICC would resolve the wanton impunity in the country saying such positions did not hold any water. He instead argued that Kenyans should focus on implementing the Constitution in order to see reforms.

"It is a weak argument; the way we look at the ICC has been misconceived. The ICC will not solve our impunity problems because it is only prosecuting a handful of people so what do we do with the rest of the offenders who we need to be prosecuting?" he posed.

The law expert also said that the government bore the sole responsibility of ensuring justice and reprieve for the victims of the post poll chaos. He argued that it was up to the government to put in place adequate measures to prevent a repeat of the violence.

He however noted that the split in the coalition government made it difficult to make certain decisions.

"The government should create such policies. We cannot wait for someone from outside to do it for us. Unfortunately for us we have a coalition government and the justice question has become a political football," he said.

He added that some of the reasons given by the government as it sought for a deferral were blanket arguments. He argued that the Constitution would not be derailed if the ICC cases went as planned and that there was no threat to national security.

"Linking the slow implementation of the Constitution to the ICC cases is artificial. You need to ask yourselves which bodies are charged with implementation of the new Constitution and I believe that these institutions can function irrespective of what the ICC is doing," he observed.

Dr Musila also observed that some permanent members of the Security Council held their positions for the deferral because they had self interests in Kenya. He however asked the top leadership to look beyond the 2012 elections and not to forget the country\’s national interests.

He also noted that the geographical location of the country and its position in the region attracted interests from western countries.

"Someone once said that there are no permanent friends in international relations what you have are permanent interests so you\’d be shocked that China can actually vote to refer Libya to the ICC when they have been unhappy with the manner in which the Court has been operating in Sudan," he asserted.

A section of ODM lawmakers allied to Eldoret North MP William Ruto have in the meantime asked the party chairman Henry Kosgey to  write a counter letter challenging the stand taken by the party secretary general.

They argue that there was no meeting that was held to sanction the objection to the deferral bid.

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