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Criticism as Kenya Lobbies UN for ICC Deferral

  • Michael Onyiego

International Criminal Court's ( ICC ) chief prosecutor Luis Moreno-Ocampo speaks at a news conference in The Hague, March 3, 2011

International Criminal Court's ( ICC ) chief prosecutor Luis Moreno-Ocampo speaks at a news conference in The Hague, March 3, 2011

International criticism of Kenya is mounting as a team of top officials travels to the United Nations to seek a deferral of the International Criminal Court's probe into the 2007 and 2008 post-election violence.

On Monday, the government of Kenya began another diplomatic press aimed at deferring trials at the ICC stemming from the violence. Six Kenyans including two prominent politicians stand accused by Prosecutor Luis Moreno-Ocampo of funding and planning the chaos, which left over 1,300 dead in the wake of disputed presidential elections.

Kenyan Vice President Kalonzo Musyoka is now leading a team of seven Kenyan MPs and ministers who will lobby the members of the United Nations Security Council to defer the trial for one year.

In January, the African Union approved Kenya’s request to seek a deferral in order to try the violence suspects locally. The first attempt at a local trial came in 2009, when Kenya established a Truth, Justice and Reconciliation Commission to investigate the violence.

But an ethics scandal surrounding the chairman effectively shut down the group’s work. Critics within Kenya’s government have called the renewed lobbying efforts a waste of taxpayer money, but Kenya’s leaders argue the judicial reforms outlined in the country’s new constitution will pave the way for local trials.

The director of the Nairobi-based International Center for Policy and Conflict, Ndungu Wainaina, believes efforts to try the perpetrators of Kenya’s election violence locally are unlikely to bear fruit.

“It is not possible in this country, maybe in another country but not in Kenya. It is as practical as that. Up to this point in time, the Kenyan government has never set up a credible and tested witness protection mechanism. That is a precondition to be able to carry out prosecutions and a fair trial for that matter,” Wainaina said.

Among the six suspects named in the ICC investigations are former Higher Education Minister William Ruto, Finance Minister Uhuru Kenyatta and head of civil service Francis Muthaura. Wainaina told VOA that the high profile and influence of those suspects would make any legal proceedings extremely difficult.

Kenya’s move to the Security Council is also being criticized on procedural grounds. Under the Rome Statute - which governs the ICC - the Security Council has the power to suspend a trial for one year if it poses a threat to international peace or security.

According to Human Rights Watch Researcher Elizabeth Evenson, Kenya’s case does not meet such criteria. “When it comes to Kenya there is just absolutely no indication that the ICC’s investigations or prosecutions pose any threat to international peace and security. In fact, the investigations in Kenya have really been welcomed,” she stated.

Human Rights Watch is part of a coalition of organizations which have petitioned the Security Council’s African members to reject Kenya’s request and allow the ICC case to continue.