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Kenya, African Union ready for battle with International Criminal Court

By Wilfred Ayaga | November 19th 2015
Cabinet Secretary for Defence Rachael Omamo (left) with her foreign affairs counterpart Amina Mohammed follow proceedings during the official opening of the fourteenth session of the assembly of state parties to the Rome Statute at the Hague on 18th November, 2015

The battle lines have been drawn as Kenya seeks to ensure recanted evidence is not used in Deputy President William Ruto's case.

The opening remarks on the first day of the 14th Session of the Assembly of State Parties in The Hague, Netherlands proved that Kenya and the African Union (AU) on one side and the International Criminal Court (ICC) on the other, are ready to face off. Kenya's twin agenda-the reversal of the application of Rule 68 on prior recorded testimony, and the audit of ICC prosecution witnesses in the cases against Mr Ruto and journalist Joshua Sang, will be considered tomorrow.

In what was a clear indication that Kenya has set the diplomatic stage for a drawn-out battle with the international court, it drew the support of the AU and several African countries on the floor of the Assembly, on a day that also saw ICC prosecutor Fatou Bensouda lobby against Kenya's agenda.

Foreign Affairs Cabinet Secretary Amina Mohammed, told the 14th Session of the Assembly of State Parties that Kenya was disappointed with the conduct of the ICC with regard to the two cases.

"Our expectations have been dampened by the activities of the court. The decision of the judge to apply Rule 68 in the case against the deputy president was regrettable. We are equal members of the assembly and we should be made to feel equal through equal application of the law," Ms Mohammed said.

"The court's current disposition must be challenged by all those with goodwill... It was a regrettable decision by the trial chamber to apply the amended Rule 68 in the Ruto case. Amendments to rules of procedure should not prejudice the accused. The myth that Africans are complacent in the face of impunity is unwarranted," she added.

walkout threats

But alongside serious lobbying are threats of a walkout and even withdrawal from the Rome Statute. National Assembly Majority Leader Aden Duale, who is in The Hague, said Kenya will lead other African countries in a walkout from ICC if the demands are not met.

"I can tell you that if the ASP rejects our demands, there will be a mas walkout by all AU members that support our position. The next alternative will be our withdrawal from the Rome Statute," Mr Duale said.

 The diplomatic manoeuvres saw the AU and delegates from other countries, including South Africa, reinforce Kenya's position that has been opposed by civil society organisations and the ICC prosecutor.

South Africa's Minister of International Relations and Co-operation, Maite Nkoana Mashabane, said that the ASP has a responsibility to safeguard its legacy. Nkoana said: "Africa will not join the uncritical chorus of loyalty. ASP must do what it needs to do to save the court."

Ethiopian Foreign Minister Tredo Adhanom, who spoke on behalf of the AU said: "The deputy president has co-operated with the court and the use of recanted testimony against him is unacceptable. The prosecution must accept that the case is dead and should be terminated."

"The time has come for ICC and the United Nations Security Council to stop avoiding the voice of Africa," he added.

But ICC Chief Prosecutor Fatou Bensouda called for the protection of the independence of the court, a key argument against the Kenyan agenda.

"I must emphasise that co-operation and political support also means safeguarding the court's independent judicial functions against any threat of subverting the course of justice, she said.

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