Rights groups have got it wrong on deferral of cases

By Dann Mwangi

Kenya: With the International Criminal Court’s Appeals Chamber ruling that Deputy President William Ruto must continually attend his trials, only the United Nations Security Council can alter his continued attendance or he himself by defying the court’s bond conditions.

The Office of the Prosecutor has also appealed the decision to exempt President Uhuru from full attendance of his case.

So far, the deferral request by the African Union is the most plausible way of stopping the trials. There has been intensive lobbying by Kenya and African Union to have the Kenyan cases deferred and so far, there are indications that some permanent members of the UNSC like the US, China and Russia are in support of the deferral request. The exact position of other permanent members of the UNSC, France and Britain, remains uncertain but will definitely be known when the deferral request is formally discussed.

This deferral request is founded on Article 16 of the ICC’s statute, which allows the UNSC to stop any prosecutions or investigations before the ICC for one year and subject to Chapter VII of the Charter of the UN. The request has certainly generated a lot of debate at the international fora as this will be the first time that the UNSC will discuss it formally.

At the local level, there will be definitely no common approach by various forces and groups within Kenya. Already, some sections of civil society who unfortunately are purporting to speak on behalf of all civil society groups in Kenya and all Kenyans have already written an objection letter on the deferral request to the UNSC. The Human Rights Watch organisation has also joined them in opposing the Kenyan deferral request.

With this in mind, questions arise about the understanding of a deferral request by these groups, and their motives for objecting to it. Without even going to the nasty accusations against these groups of fabricating evidence and bribing witnesses, the reasons why they are objecting the deferral request are quite amazing if not ridiculous. Overall, their reasons bring forth the elusive debate of retributive and restorative justice.

 As an example, the Kenyan civil society groups are of the view that trying both the president and his deputy does not compromise peace and security in Kenya and consequently does not meet the threshold of Chapter VII of the Charter of the UN.

On this, it would be naïve and reckless for any person to ignore the fact that no country, even failed ones like Somalia can have peace and stability  if top leaders are facing charges and especially outside their countries. Such leaders and especially those who ascended to power via a democratic process like Uhuru and Ruto remain symbols of national unity and must exercise their executive duties without hanging swords of Damocles from either ICC or municipal courts except if they are impeached.

The same group continues to argue that terrorism in the Horn of Africa, including the Westgate attack, are due to bad governance and should not be an excuse to defer the cases. They are factually wrong on this and confirm their myopic thinking as terrorism cannot be casually dismissed as just a bad governance issue.

It is not. Terrorism in the Horn of Africa just like in US and UK is a global problem and efforts to stem out the vice in this region cannot be achieved if states like Kenya experience political and leadership instability caused by the ICC intervention in Kenya.

These groups continue to raise various objections to the deferral bid but it is laughable for them to say that ICC process enjoys support by more than 50 per cent of Kenyans. I may not have the scientific view of Kenyans on this issue today, but it’s not true that it enjoys such support today.

Worst of all, Human Rights Watch is peddling half-truths when it says that UNSC has never deferred ICC’s prosecutions or investigations. It has. In Libya, Sudan and all peace-keeping missions where permanent UNSC members have sent their soldiers, there have been resolutions barring ICC from investigating or prosecuting their nationals.

Therefore, these groups should not mislead the world in their opposition of the deferral bid as this will only consolidate opposition against them and the ICC. Above all, universality of international human rights will be lost if groups that purport to speak on behalf of humanity peddles lies and propaganda in pursuit of their goals. Such goals will be viewed as sectarian not universal.

The writer is a lawyer