UN top organ to consider Uhuru Kenyatta’s deferral plea on Sunday

  Deputy President William Ruto (right) and his co-accused Joshua Sang (second right) meets governors, senators and other Kenyan officials at The Hague, Wednesday.  [PHOTO: PIUS CHERUIYOT/STANDARD]

By ALEX NDEGWA and Reuters

Nairobi: Kenya faces an anxious four-day wait as the UN Security Council prepares to decide whether or not to entertain a petition to defer the ICC cases facing its leaders.

The African Union-backed petition to stop President Uhuru Kenyatta’s trial and suspend that of his deputy, William Ruto, for a year was Nations’ top security organ on Tuesday. On Wednesday, The Standard established that the petition against the trials by the International Criminal Court could be reviewed during a “consultative meeting” planned for Sunday.

The talks will reportedly involve the presidency (Azerbaijan UN Ambassador Agshin Mehdiyev is serving as council president this October), the secretariat (the UN secretary general’s office) and the AU delegation.

Morocco, Rwanda and Togo are Africa’s representatives among the 10 non-permanent members of the UNSC. “The consultative meeting is scheduled for October 27, when the petition will be considered in preparation for putting it on the agenda of the UNSC plenary,” a source familiar with the process told The Standard yesterday on condition of anonymity. But asked who will attend the Sunday talks, Kenya’s permanent representative to the UN in New York Macharia Kamau said: “Only the core group of ministers and African UNSC members.” At Sunday’s talks, it is expected that a decision will be taken on whether or not to schedule Kenya’s case for discussion in the main plenary of the 15-member UN Security Council, and when.

China, France, Russia, the United Kingdom and the United States are the permanent veto-wielding members. The AU has demanded that the UNSC takes a decision before November 12, when President Kenyatta’s trial is due to start in The Hague. Ruto’s trial started last month and is due to take a break on November 1.


The AU resolution also pressed ICC to postpone Uhuru’s trial and suspend the proceedings against Ruto until such time as the UNSC considers Kenya’s deferral request.

Uganda, Ethiopia, Mauritania, Senegal and Namibia are the AU members representing the five regions of Africa in pressing Kenya’s case.

Yesterday, Reuters reported that UNSC envoys have said they would consider any AU request, but noted that the council had in 2011 turned down a deferral request and in May rejected a request for termination because the council had no such powers. But Kenya has cited the September 21 killing of over 67 people in a terrorist attack at Westgate Mall in Nairobi to buttress its case for deferral, saying the country’s leadership must not be distracted from their obligations of governing the country.

In a letter to the council obtained by the news agency, African leaders said the legal proceedings against President Kenyatta and Ruto “will distract and prevent them from fulfilling their constitutional responsibilities, including oversight for national and regional security affairs.”

The AU requested that their trials be deferred “in order to provide them with the time required for the enhancement of the efforts aimed at combating terrorism and other forms of insecurity in the region.”

Kenya has suffered the brunt of terrorism, and remains vulnerable especially from elements of Al-Qaeda affiliated terror group Al-Shabaab. This was heightened after Kenya’s forces marched across the border in October 2011 in a bid to bring order to the chaotic country, which has been without a functioning government since dictator Siad Barre was deposed in 1991.

In 1998, Kenya lost over 200 citizens in a terrorist attack by Al-Qaeda on the US Embassy in Nairobi.

In a separate letter, Kenya’s envoy to the UN Kamau said that when considering the deferral request, the 15-member Security Council should take into account the “threat to the peace, breach of the peace or act of aggression likely to transpire in light of the prevailing and continuing terrorist threat existing in the Horn of and Eastern Africa.”

The Security Council can defer ICC proceedings for a year under Article 16 of the Rome Statute that established the Hague-based court a decade ago.


The council would need to adopt a resolution to take that step.

The AU and Kenyan letters to the council come 10 days after African leaders called for a halt to the prosecution of Kenya’s leadership by the ICC.Tuesday’s AU letter did not request a deferral for Sudanese President Omar al Bashir, who faces charges of genocide, though the AU had indicated that sitting presidents should be given a reprieve from prosecution.


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