Kenya writes protest letter over handling of ICC cases


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KamauMachariaThe frosty relations between Kenya and the International Criminal Court are likely to deteriorate further after the government started lobbying to have the Assembly of State Parties to discuss the conduct of the court.

Kenya’s ambassador to the United Nations, Mr Macharia Kamau, has written to the ICC’s Assembly of State Parties accusing the court of violating the letter and spirit of the Rome Statute in the Kenya cases. The assembly plays a supervisory role over the court.

In the letter dated October 16, and addressed to Assembly’s President, Ms Tiina Intelmann, Mr Kamau has requested that Kenya’s complaint against the ICC be included on the agenda of the next meeting.

Revelations about the letter came against the background of protests by Jubilee MPs, who have criticised the handling of the case. About 30 MPs, at a press conference in Nairobi on Wednesday, demanded that the court at The Hague drop the cases against President Kenyatta, his Deputy, Mr William Ruto and radio presenter Joshua arap Sang.

“The political genesis of the ICC cases has contaminated any prospects of justice that the ICC may have contemplated… We will certainly raise the matter at the Assembly of State Parties in December,” the lawmakers said in a statement read by National Assembly Majority Leader Aden Duale

They were reacting to a caution issued by the three ICC judges in the Kenyatta case who had on Tuesday accused the government of Kenya of leaking information that the court regarded as confidential. This included a request touching on Mr Kenyatta’s assets.

Earlier, the judges had directed Mr Kenyatta to be present in court in person for the October 8 Status Conference on his case. The ruling on the fate of the case is expected before the end of the year.

Now, Kenya has asked the Assembly of State Parties (ASP) to discuss the two Kenya cases when its members meet in New York from December 8 to 17 at the UN headquarters.


The assembly has acknowledged receiving Kenya’s request. Ms Intelmann forwarded the letter to the secretariat of the States Parties on Tuesday.

In his letter, Mr Kamau said that Kenya “intends to raise concerns regarding the conduct of the court in relation to the situation in Kenya and items relating to the management of the oversight provided by the Assembly to the Presidency and the prosecutor regarding the administration of the court.”

He said Kenya will give details of its concerns on the alleged violations of ICC rules.

“The Republic of Kenya proposes that this item with an important and urgent character, be discussed by the assembly with a view to proposing immediate remedial solutions,” Mr Kamau said.

The proposal came just days after the Trial Chamber hearing Mr Kenyatta’s case warned the government against revealing confidential information to the public and the media.

Even though the warning does not carry heavy sanctions, the seven breaches listed by the judges could affect the expected ruling on the fate of the case.

Trial Chamber Judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson are expected to give a ruling on whether to terminate the case as requested by Mr Kenyatta’s lawyers, or postpone it indefinitely as proposed by Prosecutor Fatou Bensouda.

Ms Bensouda has said the case faces hurdles because the government of Kenya has failed to provide crucial documents and evidence.

In their Wednesday press conference, Jubilee MPs said the case should be dropped because Ms Bensouda has admitted she did not have sufficient evidence.

Mr Kenyatta has been critical of the decision by the Trial Chamber to require his personal presence during the status conference. He chose to appear before the judges as a private citizen after he handed over power to Mr Ruto, saying, he would never subject Kenya’s sovereignty to another jurisdiction. He also said he had not done anything as President to warrant him to appear before the court in that capacity.

Kenya has also proposed far-reaching amendments to Article 27 of the Rome Statute, which if adopted at the December meeting, will grant immunity to sitting heads of state and government.

The proposal says that “notwithstanding paragraph 1 and 2 above, serving Heads of State, their deputies and anybody acting or is entitled to act as such may be exempt from prosecution during their current term of office. Such an exemption may be renewed by the court under the same conditions.”

Kenya also wants Article 63 of the Rome Statute amended to exempt accused persons from being physically present in the court for the trials in exceptional circumstances.


Other amendments that Kenya proposed include stiffer penalties for persons who commit offences against the court’s administration of justice and the establishment of the Independent Oversight Mechanism that will inspect, evaluate and investigate the court for offences against its administration of justice.

The proposal for amendments also include an extension of the rule of complementarity to include regional courts. At present, the ICC only recognises national courts and not regional or sub-regional courts such as the African Court of Justice and Human Rights and the East African Court of Justice.

The proposed amendments were forwarded to the working group on amendments on March 14.

The frosty relations between Kenya and the ICC have also seen Parliament on two separate occasions overwhelmingly pass Motions to have Kenya withdraw from the Rome Statute that establishes the ICC.

Kenya has also been mobilising the African Union against the ICC, which President Kenyatta has described as “neo-colonial”.

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