AU divided in efforts to save Deputy President

Solicitor General Njee Muturi (right) consults with Kenya's Ambassador to the Netherlands Rose Makena and Kenya's UN permanent representative Macharia Kamau during the opening of the 14th session of the Assembly of State Parties to the Rome Statute at the Hague. PHOTO | NATION MEDIA GROUP 

In Summary

• Kenya is seeking to stop ICC from applying Rule 68 on the use of recanted evidence in the crimes against humanity case facing Deputy President William Ruto and journalist Joshua arap Sang at the ICC.
• Fault lines emerged ahead of the ASP when the ICC president, the prosecutor and the registrar jointly wrote to the ASP president opposing debate on how to apply the controversial rule on the use of recanted testimony.
• Civil society organisations from Kenya and around Africa were quietly lobbying delegates throughout the week arguing that Kenya and South Africa are attempting to turn the ASP into an appellate court, and to prematurely end the Ruto case.

By SATURDAY NATION TEAM
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Kenya and South Africa’s victory in introducing supplementary agenda at the Assembly of States Parties appeared short-lived as debate began in the plenary on Friday.

Billed as a major confrontation between African states and the International Criminal Court, the debate exposed divisions between those avoiding to interfere in the work of the court and those supporting demands to be heard.

All European countries and some in Africa, especially in the West and Botswana, opposed Kenya’s agenda.

The debate was adjourned to today when hopefully, a vote will be taken.

Foreign Affairs Cabinet Secretary Amina Mohamed delivered a veiled ultimatum to the ASP: “We expect you to be as clear as we have been … are we adding value or are we taking up your valuable time?’’. She said an answer would have to be provided to the African Union by January.

Kenya is seeking to stop ICC from applying Rule 68 on the use of recanted evidence in the crimes against humanity case facing Deputy President William Ruto and journalist Joshua arap Sang at the ICC.

Kenya also wants the trial suspended until an independent audit into how the prosecutor obtained witnesses in the case is undertaken.

Fault lines emerged ahead of the ASP when the ICC president, the prosecutor and the registrar jointly wrote to the ASP president opposing debate on how to apply the controversial rule on the use of recanted testimony.

“The appropriate forum to discuss and contest judicial matters is in the judicial proceedings before the court,” they said in the letter to ASP President Sidiki Kaba.

During debate, Ms Mohamed posed: “Many of us from Africa are feeling unwanted and uncomfortable. Are we a heavy load that you wish to get rid of?”

Kenya had drawn support from South Africa, which also presented its own request for ASP to debate its failure to arrest Sudanese President Omar el-Bashir this year, which is pending decision by the court.

The African Union led with statements in support of Kenya’s demand for a special agenda item. The AU was followed by South Africa, Uganda and Burundi, which were in turn countered by Botswana and the European Union.

The Czech Republic and several civil society organisations also opposed Kenya’s demands. Delegates drew a clear distinction between the right of states to raise their concerns but insisted that disputes on the interpretation of the law and rules should be settled in court.

The European Union, which represents 33 nations, demanded that any discussion within the Assembly must respect the competence of the court to interpret the law and the rules under the Rome Statute.

Civil society organisations from Kenya and around Africa were quietly lobbying delegates throughout the week arguing that Kenya and South Africa are attempting to turn the ASP into an appellate court, and to prematurely end the Ruto case.

Ms Gladwell Otieno, who spoke on behalf of Kenyans for Peace with Truth and Justice said: “This Assembly must speak out clearly in defence of the independence of the court. Cases being tried by the court must be tried in the courtroom, not in the corridors of the ASP.”

Ms Mohamed led a strong delegation including Defence CS Raychelle Omamo, Solicitor-General Njee Muturi and at least 22 MPs and seven senators, who swarmed the corridors of the World Forum, venue of the 14th ASP, lobbying delegates and speaking at side events.

“Our obligations under the Rome Statute have consumed every other obligation that we have. We expect that agreements made in good faith will be upheld at all costs. Nothing, not even the ICC, exists in a vacuum,” said Mohamed.

Although diplomats seeking to strike a middle ground emphasised the need for dialogue, many opposed what they termed as interfering in matters before court.

Ethiopian Foreign Minister Tedros Adhanom Ghebreyesus, speaking on behalf of the AU, urged ICC to reform or risk losing its members who are signatories to the Rome Statute.

“We have arrived at the conclusion that the International Criminal Court (ICC), whose establishment was strongly supported by Africa... is no longer a court for all,” Mr Tedros said.