Why Kenya is bitter with ICC Assembly of State Parties

The 13th session of International Criminal Court’s Assembly of State Parties (ASP) begins in New York tomorrow on a foul note, after Kenya accused the secretariat of working in cahoots with NGOs to frustrate the country’s participation.

In a strongly worded diplomatic note seen by The Standard on Sunday, Kenya’s Permanent Mission to the UN, accuses a ‘cabal of conservative and non-reformist states that find institutional self-examination threatening and unfathomable’ of frustrating its course.

Kenya had, on October 16, requested organisers of the assembly to include a supplementary agenda on conduct of the court and Office of The Prosecutor in relation to the situation in Kenya. The supplementary agenda was opposed by some ICC member states and civil society groups. The ASP rules allow any state party to request inclusion of supplementary items in the agenda of a session at least 30 days before. Rule 12 says ‘such items shall be placed on a supplementary list which shall be communicated to the state parties, observer states, the court and the United Nations, at least 21 days before the opening of the session’.

Kenya’s proposals were circulated to state parties on November 17, at least 20 days before tomorrow’s ASP. “The countries that are resisting and subverting Kenya’s requests for the inclusion of a supplementary agenda are joined at the hip by a cacophony of civil society organisations whose constituency and mandate is suspect and whose agenda has more to do with purveying the displeasure of their funders than promoting the principles of the Rome Statute or human rights,” Kenya’s note written on Thursday charges.

In a November 3, justification of the supplementary agenda request, Kenya’s ambassador to the UN, Macharia Kamau had accused the prosecutor of purporting to sustain evidentiary weak cases, conniving with intermediaries to influence witnesses and “conflating the legal personalities of the President and Deputy President with that of individual defendants”.

Further, Kamau accused the ICC of having lower evidentiary threshold and prosecutorial practices than Kenya, OTP of not adhering to international standards, lacking independence, politicising the Kenyan cases as well as accused judges of ignoring ASP amendments.

“The republic of Kenya proposes that these aforementioned items are addressed by the ASP as items of an important and urgent character, in the exercise of the management oversight provided by the assembly to the presidency and the prosecutor regarding the administration of the court with a view to proposing immediate remedial solutions including appropriate caution to the court and the office of the prosecutor,” the letter reads.

On November 20, civil society groups, led by Coalition for the ICC, Human Rights Watch and state of Liechtenstein opposed the supplementary agenda, saying they were politically motivated, could undermine the independence of the court and are too judgmental.

But in the diplomatic note to ICC member states on December 4, Kamau says those who worked to defeat the supplementary agenda are doing so on the basis of disinformation. He said the request was not “quintessentially and eccentrically Kenyan”. “The request is neither essentially Kenyan nor specific to the Kenyan cases before the court. At 10 years, the ICC is an institution that is old and strong enough to receive and respond to criticism and feedback on its performance,” Kamau said.

He said the court is capable of adopting ways in which it could be stronger, more responsive and “fitter for purpose”. He said ICC should be attuned to the needs of its broad membership and the promise of the Rome Statute.

He claimed the current state of affairs at the court is “at best below par and at worst embarrassing and even counterproductive to the pursuit of justice and peace and security in the world”.

“There is no institution that cannot do without improvement. The assembly must rise to the challenge of doing whatever is necessary to make this sorely needed and indeed, historical institution fit for purpose and better attuned to the political and human rights expectations of the 21st century,” the note said. The assembly will run to December 17. Key in the agenda is the election of the new President of the ASP, election of six judges and consideration of amendments to the Rome Statute. Senegalese minister Sidiki Kaba is expected to be unanimously elected to succeed Tiina Intelmann.

Ambassador Álvaro Moertzinger (Uruguay) will be elected as one of the Vice Presidents of the Assembly and Coordinator of The Hague Working Group while another Vice President representing the New York Working Group will be elected.

President of the Central African Republic Catherine Samba-Panza is expected to give a keynote speech when the assembly opens tomorrow.

Kenya’s Foreign Affairs Cabinet Secretary Amina Mohamed is leading a delegation of government officials, including MPs to the assembly. A number of Kenyan NGOs will also attend the assembly in observer status.