President Uhuru Kenyatta’s ICC fate rests with five nations

Nakuru’s Jubilee supporters protest outside Jubilee offices in Nakuru, where they called upon President Uhuru Kenyatta not to attend the ICC trials, Sunday. [PHOTO: BONIFACE THUKU/STANDARD]

By GEOFFREY MOSOKU

President Uhuru Kenyatta's immunity from trial by the International Criminal Court (ICC) might be decided by 15 nations, who are members of the UN Security Council.

Wielding immense leverage are five permanent members with veto power, namely USA, Britain, France, China and Russia.

Censure by any of the big five will sink Kenya’s quest to stop Uhuru becoming the first sitting head of state to be tried by the international court, should the matter come up for a vote. Argentina, Australia, Azerbaijan, Guatemala, Luxembourg, Morocco, Pakistan, Korea, Rwanda and Togo are the 10 non-permanent members.

Collectively, these members will decide on the African Union resolution for deferral of the ICC cases facing President Kenyatta and his deputy William Ruto, should it be formally presented to the UN Security Council (UNSC). Among veto-wielding nations, China and Russia are likely to support Nairobi given their past sentiments that the cases should be referred. The US, France and Britain are strong proponents of the ICC.

France is among the countries whose envoys to Kenya are yet to secure an appointment with President Kenyatta to present diplomatic papers. It is understood that the delay is a silent protest by Nairobi over France’s ICC position.

President Barack Obama skipped Kenya on his recent tour of Africa, citing the indictment of Kenyan leaders by the ICC.

Interests threatened

Kenya might have to work even harder to win them over after President Kenyatta’s blunt attack on Western powers during his address to the AU special summit in Ethiopia at the weekend.

For the UK, however, recent debates in the House of Commons and the House of Lords, where some British lawmakers criticised the ICC cases against the Kenyan leaders, have attracted attention.

Kenyan officials are hoping debate in the UK Parliament might influence the position of Prime Minister David Cameron’s government.

“We are determined to ensure the UK’s support for international justice and the ICC does not jeopardise our wider bilateral relations with Kenya,” Mark Simmonds, the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs told the Commons on Wednesday during debate on ICC’s intervention in Kenya.

Sunday, University of Nairobi political science lecturer Dr Joshua Kivuva argued that the decision to be made by the UN body will largely depend on how the US and UK feel about any threat to their interests in Kenya.

“Britain and the US must decide whether or not to give up on their interests in Kenya. If they feel their interests are threatened, they will push for a deferral but if they decide to give up their interests, the matter will not see the light of day,” said Dr Kivuva.

And unlike previous attempts by then President Kibaki’s government to defer the cases that were dismissed at informal talks of the Security Council, observers say the latest continental push is serious. “AU has made a strong statement and case and the UNSC and ICC need to sit and reflect,” says Prof Macharia Munene, an international relations lecturer.

At the Addis Ababa summit, Morocco, Rwanda and Togo, who are members of the UNSC, and Ethiopia and Uganda, were tasked to present the petition. Ethiopia was picked as chair of AU, while Uganda will represent EAC. UNSC rules stipulate that the Security Council President shall call a meeting of the Security Council at the request of any member. Meetings are called when the need arises and the AU has given the Security Council until November 12, when Uhuru’s trial is scheduled to begin, to respond.

Azerbaijan is the President of the UNSC for October. Instructively, China will hold the presidency next month.

Political advisor Prof Peter Kagwanja explained: “By November 12, Africa will have spoken and demanded answers. In the past, the UNSC has not rejected AU requests but simply put them in cold storage (ignored). This time, Africans have decided to fight.”

Prof Kagwanja argued that if ICC and UNSC ignored the AU pleas, it could be the end of the road for the international court, as its credibility will be injured. But some analysts differ, saying the latest push by Kenya with the Security Council will collapse just like previous attempts.

‘Laugh test’

International Centre for Conflict and Peace (ICPC) Executive Director Ndung’u Wainaina argues that the UNSC can only act in cases where international peace and security are under threat, a situation not prevailing in Kenya.

And lawyer Prof Makau Mutua scoffed at the AU ultimatum to bring ICC cases back to Kenya, saying it doesn’t even pass the “laugh test”.

However, Uhuru’s political advisor, Joshua Kutuny, said: “We have made a request and if they (UNSC) decline, it will confirm our fears that the process is not fair.”

Today, Foreign Affairs Cabinet Secretary Amina Mohammed will address a news conference “to give Kenya’s perspectives” on the extra-ordinary AU summit.