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By Mzalendo Contributor - Moreen Majiwa (@mmajiwa)
Intense lobbying by the Vice President for African Union (AU) support for deferral of Kenya’s ICC case seems to have yielded results. Last week at the AU summit, support for the deferral was resounding Kenya gained the backing of both the Executive Council (AU ministerial level) and the General Assembly (AU Heads of State Level).
However the AU’s support for the deferral of the Kenya case is unsurprising. The AU made a similar request for deferral in the Sudan case after the UN Security Council referred situation in Darfur to the Office of the Prosecutor (OTP). Of course, the circumstances are slightly different. In the case of Sudan the AU Peace and Security Council requested deferral after the OTP submitted its ‘application for the issuance of the arrest warrant’ against Sudan’s president, citing that the timing of the request for arrest warrants could jeopardize the ongoing Darfur peace process.
In Kenya we’re still at the summons stage, no application has been made for the issuance of warrants, and our peace process (if it can be called that) was completed in 2008. It is worth noting however that despite an ongoing peace process and active violence in Darfur the Security Council still rejected the AU ‘s application to have Sudan case deferred. So what are Kenya’s chances and what are the requirements for deferral of Kenya’s case?
The clause the government is relying on to make its case for deferral is Article 16 of the Rome Statute which provides for postponing investigations or prosecutions for a period of 12 months on the adoption of a Security Council Resolution taken under Chapter VII of the UN Charter. (Side Note: Why is parliament trying to use the very same statue it is planning to pull out of to defer its ICC Case?) Chapter VII of the UN Charter would allow the UN Security Council to defer a case to ‘maintain or restore international peace and security’ if it determines the existence of any threat to the peace, breach of peace or act of aggression. Chapter VII resolutions are rare and tend to be used only in extreme circumstances. So far in the case of Kenya, there is nothing to indicate that the continuation of the ICC proceedings would create a threat to peace and security as envisioned by Chapter VII of the UN Charter.
Furthermore, Kenya would require the support of if 9 of the 15 members UN Security Council and the support of the all the permanent members. One veto by a permanent member (China, France, Russia, UK and US) of the Security Council would result in refusal to defer the case. Plans are currently underway to lobby the members of the UN Security Council to support the deferral with a special Cabinet team being set up to taken on the task.
One of the main reasons given by a certain section of government officials for deferral is the reform of Kenya’s judiciary and Kenya’s ability and willingness to now try the 6 ICC suspects. However Article 16 of the Rome Statute is clear as to the circumstances that warrant deferral, ‘reforming’ is not one the criteria.
As it stands deferral seems unlikely, and this begs the question what is the true motive behind spending millions of taxpayers shillings on a process that is unlikely to succeed?
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