THE HAGUE, Netherlands, Nov 21 – The Africa Forum on ICC (AFI), an international civil society organisation, is urging the Assembly of States Parties to invoke a provision in the Rome Statute to commence an investigation into the conduct of the Office of the Prosecutor following numerous complaints of flawed investigations in the Kenyan cases.
The organisation is convinced that the issues raised by Kenya and the African Union (AU) cannot be tackled adequately unless an independent panel is set up to investigate the allegations.
ICC Prosecutor Fatou Bensouda and her predecessor Luis Moreno-Ocampo are accused of conducting flawed investigations in the Kenyan cases facing President Uhuru Kenyatta, his Deputy William Ruto and a former radio journalist Joshua arap Sang.
“The best the assembly can do is to constitute a panel that will look into allegations regarding the collection of evidence and facts in the Kenyan situation,” AFI says in a petition to the Assembly of States Parties that got underway in The Hague Tuesday, through to Thursday next week.
The petition is signed by AFI Chairman Danson Mungatana and Secretary General David Matsanga who are convinced that the credibility of the ICC in light of the Kenyan cases continues to shrink, “because serious questions of witness procurement and shoddy investigations” have not been dealt with.
“We want to alert the world of the danger of allowing flawed investigations to override international benchmarks of the respected court,” they state in the petition titled “Tampered Evidence Dangerous to Justice” handed to the assembly on Thursday.
One of the assembly’s main agenda is a special segment requested by the African Union titled “Indictment of sitting Heads of State and Government and its consequences on peace, stability and reconciliation” which is scheduled for debate later on Thursday afternoon.
Kenya is banking on this debate which, it hopes will benefit President Kenyatta and his Deputy Ruto who are facing crimes against humanity charges in The Hague-based court.
Ruto’s trial has been going on since last month while Kenyatta is scheduled to go on trial from February 5 next year.
On Wednesday, Kenya’s Foreign Minister Amina Mohamed passionately appealed to the African states who are members of the Rome Statute to support the AU motion which seeks to grant immunity to heads of states and government from trial during their term in office.
“These amendments will help eliminate rules that are causing tensions in the continent,” the Foreign Minister told the Assembly, while at the same time accusing the court of not giving Kenya the cooperation it deserves.
But AFI is convinced that amending the Rome Statute to cushion heads of states from prosecution while in office is a complex affair, and is instead proposing to the assembly to order for the creation of an independent panel to probe the prosecutor.
“It is not the right approach because the amendment the AU is asking for will not benefit Kenya much. They should first ensure the prosecutor is investigated on the issues raised before the trial can proceed,” Matsanga said.
AFI is not convinced the AU request will attain the support of 88 states to push through the amendment cushioning sitting heads of states and government, going by the level of lobbying from civil society organisations at the World Forum where the assembly is taking place.
“There is no sufficient lobbying done, it is not easy to achieve the number of states required to push through the amendment,” he added.
The Kenyan government team in the assembly is led by the Foreign Minister who is accompanied by Attorney General Githu Muigai, Director of Public Prosecutions Keriako Tobiko and Kenya’s ambassador to the UN Macharia Kamau.
It is significant to note a vote cannot be taken on Thursday on the proposed amendments since Kenya did not table them within the three-month time frame required under ASP rules.
Kenya will be seeking support with a view to have a special session called later to vote on the amendments.
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