Hague drama as Kenya blasts UK

Foreign Affairs PS Karanja Kibicho (Left) and John Bradshaw, head of communications at the British High Commission in Nairobi.

By ALEX NDEGWA

Kenya: Kenya fought bitterly to have a proposal to shield sitting presidents from prosecution placed for consideration at the ICC conference, on a day diplomatic row with Britain deepened.

The Government kicked up a storm as an amendment guaranteeing “no sitting Head of State or someone entitled to act in that capacity can stand trial at the ICC until their term of office is over” had not been adopted as the Assembly of States Parties (ASP) opened at The Hague Wednesday.

“They only admitted the motion after our protests. Why do they have to allow things to escalate to this level over obvious procedural matters?” Foreign Affairs PS Karanja Kibicho told The Standard Wednesday evening, amid conflicting reports on the fate of the motion.

The drama played out as ICC prosecutor Fatou Bensouda filed an application asking the judges to review the decision allowing Deputy President William Ruto not to attend his trial, citing reports the DP would lead Kenya’s delegation to ASP meeting.

Earlier, the Government had condemned the failure to adopt Kenya’s African Union-backed motion to amend the Rome Statute, and expressed surprise at the adoption of Britain’s proposal for trial via video technology.

A hard-hitting statement by the Ministry of Foreign Affairs scoffed at the motion “reportedly sponsored by Britain”, adding, “we hope that this is not an effort to detract from the real issue(s) as identified by Africa. “

Kenyan officials had claimed UK’s proposal is designed to water down Kenya’s push for immunity from prosecution tailored to stop the trials of President Uhuru Kenyatta and deputy Ruto.

“We are therefore surprised that the intended motion for amendment …has not been adopted as part of the agenda of the forthcoming conference of States Parties,” said Kibicho in a statement dispatched to newsrooms at 3pm yesterday.

“Even more surprising is that the motion by Britain to introduce the video link technology has been adopted as part of the agenda. Africa is at a loss as to the logic behind replacing a motion mandated by the African Union, whose 34 members make up a significant membership of the ICC and replacing the same with another motion by Britain,” Kibicho added.

The statement also appeared to single out Britain for the failure of Kenya’s request for deferral of ICC cases against the Kenyan leaders at the United Nations Security Council.

“The proposal was defeated with the help of eight abstaining members, Britain, forcing a no-vote on the matter,” Kibicho said.

Disputed suggestions

The PS added the AU did not at any time request for a motion on conducting the Kenyan trials through video link.

“The AU was categorical in its decision to exempt sitting heads of State or persons entitled to act in the same position from trial while in office. We hope that this anomaly in the agenda of the Assembly of State Parties will be rectified and the matter deliberated upon as expected by the African Members to the Rome Statute,” Kibicho said.

But the British High Commission in Nairobi disputed suggestions that UK’s amendment to the ICC Rules of Procedure, which would allow attendance by video conference at parts of the trial, was designed to scuttle Africa’s bid to secure immunity for leaders facing prosecution.

 “Some commentators and parliamentarians in Kenya have suggested that the UK proposed amendment on video conferencing is designed to replace or substitute other proposed amendments at the ASP.  This is not true.  The UK has proposed this amendment independently to any other amendments that have been tabled by other States Parties,” said John Bradshaw, head of communications at the British High Commission in Nairobi.

“The UK has tabled this amendment in a constructive and helpful spirit, to address AU concerns.  We encourage all parties to enter into these discussions in the same constructive spirit,” added Bradshaw in a statement.

“We recognise and empathise with the desire to allow the President and Deputy President of Kenya to fulfill their constitutional responsibilities.  The ICC Assembly of States Parties is the right place to engage on and address the concerns of the African Union (AU) and those of the President and Deputy President of Kenya regarding how they can do that, while still fulfilling their international responsibilities,” Britain added, underscoring preference for trials to proceed.

Bradshaw explained it is for the ASP Secretariat to decide what issues are discussed at the meeting.

The assault on Britain by the Jubilee government continued in Parliament, where National Assembly Majority Leader Adan Duale and the chairman of the House Committee on Defence and Foreign Relations Ndung’u Gethenji said they would not accept Britain’s proposal to have the President and his deputy tried via video link.

“We did not send Britain to get us a video link. They never asked the President, the Deputy President, Parliament or even Africa, yet they go ahead and seek an amendment that affects us. We don’t want a video link,” Duale said.

Gethenji, who had filed a motion calling for an emergency sitting for the House to express displeasure at what he claimed was Britain’s move to change the agenda at the ASP meeting, pulled back at the last minute, citing reports the AU amendment had been reinstated.

They were joined by the chairman of President Kenyatta’s The National Alliance (TNA) party Johnson Sakaja (nominated) during the press conference at which they accused Britain of “malice, double-speak, hypocrisy, and dishonesty” for pushing to have President Kenyatta tried.

Another amendment is excusing an accused from presence at trial, according to a document from the chair of the ICC Assembly of State Parties.

“If the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court (discussed alternative: “who is subject to a summons to appear”), appearance by such person throughout the trial may, if he or she so wishes, be by counsel,” reads the document.

Kenya is pressing amendments to shield sitting presidents or anyone who can act in that capacity from prosecution, take away the power to sanction deferral from the United Nations Security Council and to review how the prosecutor investigates cases.