Kenya's secret plot against ICC



Kenya is laying ground for a motion to be tabled at the African Union Summit in Ethiopia that could trigger withdrawal of African states from the Rome Statute that founded the International Criminal Court.

Sources in Government told The Standard, the plot to instigate the pullout from International Criminal Court is being driven by a shuttle diplomacy by some ministers within African capitals ahead of the January 30-31 AU meeting in Addis Ababa. This meeting is expected to set the agenda for the main Summit attended by African leaders in July.

It has also, sources within the Presidency revealed, seen the recall of a suspended senior civil servant, to sit in an informal secretariat at the Office of the President, which is playing the role of a think-tank in the process. The team is working closely with the Head of the Civil Service, Mr Francis Muthaura, who incidentally is on the ICC list of six suspected masterminds of post-election violence.

Youth in Kisumu on Monday presented a memorandum to Nyanza PC, urging President Kibaki not to lead Kenya out of the Rome statute. Many Kenyans believe the ICC Chief Prosecutor Luis Moreno-Ocampo would ensure justice for post-election violence victims. [PHOTO: Titus Munala/STANDARD]

The AU provides a promising exit pad for Africa from ICC because it already has disowned Sudan President al-Bashir’s indictment and called for its deferment, as well as amendment of Article 16 of the Rome Statute to enable other UN bodies to request suspension of ICC prosecutions in case of inaction by the Security Council. AU also turned down establishment of an ICC liaison office within it.

Those who have reportedly been tasked with the assignment of advising Government on this matter, as part of their routine official duties, include: Mr Ben Kioko who is the Legal Counsel of AU Commission, suspended Foreign Affairs PS Mwangi Thuita, who was instrumental in the drafting of the statute on the Kenyan side, as well as Prof Peter Kagwanja. A lawyer who represents one of the Ocampo Six and Kenya’s ambassador to Ethiopia Dr Monica Juma have also been mentioned.

The Government, it was further reported, has or is about to assign five ministers with the envoy role in this mission of lobbying African states. They are Ali Mwakwere, Wycliffe Oparanya, Njeru Githae, Hellen Sambili and Dalmas Otieno.

This is being done alongside President Kibaki and Prime Minister Raila Odinga’s new push for a local justice tribunal that Kenya hopes would satisfy ICC the country can be trusted to handle all cases of post-election violence, regardless of the profiles of the individuals involved.

Selective justice

To this end, our sources added, Vice-President Kalonzo Musyoka who has accused ICC of selective justice and discrimination against Kenya, which he argued has ruled itself for close to 50 years without external help, left the country for South Africa last night. Besides his official engagement, the VP, who is a lawyer by profession and a former Foreign minister, is expected to engage in guarded consultations with the South African Government for the motion.

Last week Kalonzo argued: "ICC will not understand the dynamics of the country by sending our people to The Hague. We are capable of dealing with local matters. We were affected locally and so we will deal with it."

Sources indeed reveal Kibaki did raise the issue of Kenya pulling out from the Rome Statute with Raila on the two occasions they met last week. It is, however, not clear what the PM’s response was, but sources reveal he may not have been helpful, and that is why a second meeting was convened by the President the next day.

The AU deal Kenya is pursuing entails backing a motion moved by a African Arab state that may see the Africa Union summit this July endorse a choreographed pull out from the manacle of the Rome Statute. Because of the indictment of al-Bashir, the use of an Arab state to float the motion would strategically be seen as taking Kenya out of the picture, and making her look like just part of the wave of Africa’s protests against alleged bias against the continent by ICC.

The strategy involves senior State officials with expertise in the world of diplomacy and international law. "I am not aware of the tasks. Maybe the letter assigning us those duties is with my PS (Dr Edward Sambili) who is away on leave until Monday (yesterday)," Oparanya told The Standard when asked for comment.

Last month, MPs voted for pulling out of the treaty. However for the process to start, the President will have to petition the UN.

Easier option

But it seems Kibaki has settled on the easier option of riding on the back of the AU, which will save him the pressure accruing locally and internationally that he is taking Kenya out of ICC as a reaction to its indictment of the six Kenyans, who include Deputy Prime Minister Uhuru Kenyatta, former Cabinet ministers William Ruto and Henry Kosgey, as well as former Police Commissioner Hussein Ali.

Kibaki’s displeasure with ICC came out when he said those named would not have to resign because investigations were going on. But even more pointedly, key members of his party in Cabinet have called on Kenya to ditch ICC. They include Cabinet ministers Kiraitu Murungi, Beth Mugo and Njeru Githae.

Like their counterparts in Parliament their argument was that ICC is a colonial and anti-African court, and by deferring to it, Kenya was surrendering its sovereignty.

Former Justice Minister Martha Karua, the only MP who opposed Ruto’s Motion, argued it was part and parcel of Kenya’s impunity.

"I’m sure if Ocampo had touched on six ordinary Kenyans, all would be quiet," she charged.

"Kenyans will not allow the Executive to withdraw from the ICC. We will then instantly go around the country and demand for a snap General Election to have a people’s Government in place," said a reform lobby set up by Mr John Githongo and Prof Yash Pal Guy on Sunday.

But politicians remain divided on the decision by Parliament, with Assistant Minister Kareke Mbiuki vowing the number of MPs who voted for it are united and will frustrate any Government business in the House if the President fails to comply.

But Cabinet Minister Noah Wekesa said he would personally appeal to the President not to allow the country to withdraw from the Rome Statute.

-—Additional reporting by Allan Kisia.

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