After five hours of debate at the
Assembly of State Parties in The Hague last week, the heated plenary
session at which 36 nations spoke ended without a conclusion.
The
session was the ASP’s response to the African Union’s request for a
special segment to discuss the indictment of sitting heads of state and
government and its consequences on peace, stability and reconciliation.
In
reality, it was no more than a smokescreen to discuss the
appropriateness of Kenya’s President Uhuru Kenyatta - who was indicted
for crimes against humanity a full year before he took office –
attending trial.
It was not the outcome the high-powered Kenya delegation had hoped for.
Foreign
Secretary Amina Mohammed had promised fireworks and assured the world
that Kenya would easily marshal 81 votes – from the requisite two-thirds
of ASP members – to pass amendments that would grant the Kenyan
president immunity from prosecution while in office.
By
Saturday, Attorney General Githu Muigai – who also attended the meeting
alongside a posse of officials from his office as well as Director of
Public Prosecution Keriako Tobiko and Ambassador Macharia Kamau -- was
creating distance from the desire for immunity from prosecution, saying
it was never Kenya’s intention in the first place.
Just what went wrong?
It
started with the debate. Once word got out that Mr Ruto -who was
similarly charged with crimes against humanity in a separate case in
April 2011 – would lead the official AU delegation to the Assembly of
State Parties, the ICC Chief Prosecutor, Fatou Bensouda, filed an
objection in court seeking to lift his excusal from attending court.
It
turned out that Mr Ruto would not be attending the ASP after all. Mr
Ruto has been attending trial at the ICC since September 12.
Minutes
before the plenary session began, special assistant to the ICC
President Philip Ambach explained to Kenyan reporters that amending the
Rome Statute by article or rule was a herculean task.
The
proposal had to be notified to the UN Secretary General three months
before the meeting, endorsed by two-thirds (81 states) of all state
parties in plenary, and ratified by seven-eighths (107) state parties.
At
the conclusion of the plenary session, Prof Muigai effusively thanked
those who had worked behind the scenes to put him on the speaking panel
in the face of great resistance.
Therein lay the
answer to the puzzle of Kenya’s misfortunes – the panel had consisted of
the AG as well Commission for the African Union’s legal counsel, Djenna
Diarra, Prof Cherriff Bassiouni and Prof Charles Jalloh. Prince Zeid
was in the chair.
Prof Bassiouni is known as the
godfather of international criminal justice, having established the
International Criminal Tribunal for Yugoslavia and worked as a
prosecutor in it. His feelings about the crisis of trying sitting heads
of state when he had prosecuted Milosevic could only be guessed at.
His
contribution tended to suggest that the ICC prosecutor had the
discretion to dispense with the concerns of the AU. Charles Jalloh, a
widely published professor of international criminal law and former
lawyer for Charles Taylor at the UN Special Tribunal for Sierra Leone,
insisted that what the AU was asking for was already provided for in the
Rome Statute.
Finally, Prince Zeid Al-Hussein was the
first President of the Assembly of State Parties. His stewardship of the
conversation, ending without a conclusion, appeared deliberate.
While
Ms Diarra spoke of the desire by Africans to be trusted and listened to
in the interests of peace, justice and reconciliation, Prof Muigai was
more blunt: “We stand in the frontline with the international community
in the fight against terror, piracy and drug trafficking,” he said, and
if the country could be trusted with such responsibility, it ought to be
trusted on issues of dealing with impunity.
After four
hours, already a full 60 minutes outside the allotted time for
discussion, the irritation was beginning to show in belligerent
language: “We are co-operating not because we have been directed to do
so but because we are committed to the rule of law,” said Prof Muigai.
It
was not entirely an African position – Senegal, Cote d’Ivoire and
Democratic Republic of Congo were not on the bus, while South Africa and
Tanzania spoke with equivocation.
The voices from
South America – Peru, Guatemala, Brazil, and Argentina -- blended with
all of those of the Civil Society: immunity is equal to impunity.
They
wanted recorded testimony admitted from people who had died or could
not come to court, or has been interfered with. They also wanted
restrictions on notifying the defence when witnesses incriminated
themselves relaxed, the Prosecutor to disclose intermediaries and ease
the way for local trials. The lynchpin of the amendments was to allow
accused persons to write to the court seeking to be excused from
attending trial, and to be guaranteed automatic excusal if they are head
of state or government.
It was a lost cause, and a
feeling of guilt was beginning to wash over some of the delegations that
Kenya would walk away from the assembly empty-handed. Over the weekend,
Greece and Guatemala led discussions to amend the rules so that
individuals with special responsibilities could be excused from physical
attendance of court proceedings.
No comments :
Post a Comment