KENYA has sought the help of the Assembly of States Parties over what she terms gross violation of the Rome Statute by the ICC in the prosecution of the twin Kenyan cases.
In a letter to the Court’s 122 signatory states – known collectively as the ASP – Kenya wants the institution to explore her concerns in depth during the upcoming meeting in New York. The week-long 13th Session of the ASP is scheduled for 8-17 December, 2014, in New York.
In setting the stage for a major showdown between the government and The Hague-based Court, Kenya maintained that the ASP should come up with “immediate remedial resolutions” on the trial of this country’s top leadership.
“Kenya intends to raise concerns regarding the conduct of the Court in relation to the situations in Kenya and items relating to the management oversight provided by the Assembly to the Presidency and the Prosecutor regarding the administration of the Court,” the letter by the Kenyan Permanent Mission to the UN reads in part.
“The Republic of Kenya proposes that this item, with an important and urgent character, be discussed by the ASP with a view to proposing immediate remedial solutions,” the mission says.
The letter, dated October 16, just a week after President Uhuru Kenyatta’s historic trip to The Hague, promises to detail what it refers to as gross violations of the letter and spirit of the Rome Statute.
Ironically, the ICC judges have themselves threatened to sanction Kenya through the ASP if its proved that the government has declined to hand over Uhuru’s financial records.
On Tuesday, the Chamber stepped up pressure on the Jubilee administration and lambasted Attorney General Githu Muigai for breach of confidentiality and repeatedly leaking protected information to the press.
The move triggered a Jubilee lawmakers’ tirade against the Court. About 50 MPs led by Aden Duale and Kithure Kindiki accused the ICC of planning to have President Uhuru Kenyatta and his Deputy William Ruto prevented from defending their seats in 2017.
As though aware of the government’s ASP strategy, Duale and his group warned the ICC to expect a tough fight at the New York function.
Apart from the current request, Kenya is still pushing for the amendment of the Rome Statute to explicitly state that sitting presidents and their deputies “may be exempt from prosecution during their current term of office”.
The matter, which is likely to divide the States Parties, will automatically feature in the agenda of the meeting after it was deferred last year, to the chagrin of Kenyan officials.
During that debate, AU members voiced their support for immunity. However, the European Union made a statement on behalf of its 28 court members opposing any steps to grant immunity based on official capacity. The South American states were similarly opposed.
Although it remains unclear what the Kenyan government wants addressed, there are a number of critical decisions by ICC judges that have rattled Uhuru and Ruto.
The decision to compel recalcitrant witnesses to testify in the Ruto trial is likely to breathe life into Uhuru’s case, where there prosecution has been dented by the withdrawal of critical prosecution witnesses.
Already, Prosecutor Fatou Bensouda has said that she will seek to admit the initial statements of the recalcitrant witnesses directly as evidence — if its proved that they were influenced to withdraw from the proceedings.
The judges are expected any time to decide whether to terminate Kenyatta’s case, adjourn it indefinitely or refer the matter to the ASP for noncompliance.
