Showdown Looms in U.S. Over Kenya’s ICC Agenda

The stage is set for a showdown between states critical of the ICC and the Court’s backers as Kenya has tabled a detailed account of what it terms gross violations of the Rome Statute by the global institution.

Already, the President of the Assembly of States Parties, Tiina Intelmann, has informed the Court’s 122 signatory states of Kenya’s proposed supplementary agenda at an upcoming assembly in New York next month. The two top members of the Kenyan Presidency have crimes against humanity cases before the ICC.

This means that Kenya’s controversial agenda to discuss the conduct of the Court and Prosecutor may finally find its way into the ASP meeting, set for December 8-17.

In a strongly worded letter copied to the ASP leadership and African Union on Monday, Kenya accuses the ICC of politicising the cases, incorrect interpretation of the Rome Statute and continuing to prosecute cases that do not meet evidentiary thresholds.

“The Office of the Prosecutor has on several occasions stated the evidence that is available in the case against President Uhuru Kenyatta is insufficient to prove alleged criminal responsibility beyond a reasonable doubt,” Kenya’s Permanent Representative to the UN Macharia Kamau stated.

He went on: “Today, Kenya find itself saddled with a Court that has lower evidentiary thresholds and prosecutorial practices than those found in Kenya’s national courts.”

But in the clearest indication of a looming clash, Kenyan civil society organisations told off Macharia, calling on him to stop acting as though he were the defence lawyer for Uhuru and his deputy William Ruto.

“Ambassador Kamau needs to be reminded that he is not defence counsel for Uhuru Kenyatta, William Ruto or Joshua arap Sang, all of whom are charged in their individual capacities,” Kenya for Peace with Truth and Justice, a coalition of over 30 NGOs, said in a statement.

“He is the Permanent Representative of the Republic of Kenya to the United Nations and, as such, he should represent all Kenyans, including the victims of the post-election violence, and not merely pursue the partisan interests of the powerful individuals indicted by the ICC,” KPTJ said.

In his letter, Macharia also maintained that prosecution witnesses against Kenya’s top leadership are liars who were promised financial gain, including relocation to other countries.

He also questioned the Prosecution’s independence, pointing a finger at civil society and states which he insisted “have influence over the mandates of the Court”.

“The independence of the OTP is called into question, as we continue to witness the preferential access by some States and civil society organisations and the influence they have over the exercise of the mandate(s) of the Court,” he stated.

“This influence is also witnessed in other operational spheres, such as the recruitment of staff, especially professional staff, which is heavily skewed in favour of a segment of the membership of the ASP rather than geographical and regional balancing reflecting the face of all states parties.”

He also accuses the Court of politicising the Kenyan cases, saying ICC Prosecutor Fatou Bensouda has been meeting various groups, including the US Senate, “where the actions of the Government of Kenya are discussed and characterised in negative light”.

In their statement, KPTJ, whose members include Africog, ICJ and KHRC, maintained that the desire for a sustainable peace must be founded on justice.

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