The government insists that the cases facing Deputy President William Ruto and radio broadcaster Joshua arap Sang at the International Criminal Court will hinder the national programme of reconciliation after the deadly violence that followed the 2007 General Election.
In a speech delivered to the Assembly of State Parties (ASP) to the Rome Statute, Kenya’s Ambassador to the United Nations Macharia Kamau said the country is unable to build “a stronger democracy and society” because of the ongoing cases.
“Anyone with the slightest inclination to learn about our country cannot help but come to the conclusion that Kenyans are determined to move on from the events of eight years ago.
“The people of Kenya have a deep desire to put the post-election violence of 2007 behind them. It is therefore deeply regretted that the ICC continues to be a hindrance and a stumbling block to these aspirations.”
Mr Ruto and Mr Sang are standing trial before the ICC at The Hague for crimes against humanity said to have been committed during the post-election violence of 2007/08.
Specifically, Mr Ruto is accused of being criminally responsible as an indirect co-perpetrator in the murder, deportation and persecution of civilians. Sang is accused of contributing to the commission of the same crimes.
President Uhuru Kenyatta was also facing charges of crimes against humanity until last week when the Prosecutor Fatou Bensouda announced she waswithdrawing the charges for lack of sufficient evidence.
A ‘BETRAYAL’
The assertion by the Kenyan envoy could irk survivors of the violence who last week called on the Court to go for smaller fish and bring perpetrators to book.
Responding to the withdrawal of charges against Mr Kenyatta, their lawyer Fergal Gaynor said it would be a “betrayal” if the ICC walked away.
“It is imperative for the Prosecution to take all action in the courtroom, and in the diplomatic arena, to ensure that it can gain access to every individual and every item necessary — wherever in the world they might be — to uncover the truth,” they observed.
But Mr Kamau, who is representing Kenya at a meeting of member countries of the ICC, argued during a session for general debate of the ASP in New York that the cases may not serve justice to the victims.
The ASP are meeting at the United Nations headquarters in New York to discuss the challenges and progress the Court has made since it was created under the Rome Statute 11 years ago.
The ASP includes 139 members with 122 countries having formally ratified the treaty, a majority of them from Africa.
Kenya had tabled suggestions to discuss the cooperation with the ICC, the conduct of the Prosecutor, independence of the Office of the Prosecutor and the “politicisation” of the judicial and prosecutorial functions of the Court.
However, during the general debate, the Kenyan diplomat used the opportunity to insist that Kenya was still supportive of the Court but only had some “strong views” about how some processes were being conducted.
“Just because something is legally possible and can be prosecuted does not mean that it should be, nor that it is fair or just to do so.”
He gave the example of the United States (a non-member of the ICC) which pardoned soldiers during its 18th Century war of secession despite committing crimes “that offended the conscience of the people of that time.”
“Such were the hard decisions on which this (American) democracy was built. They took the long view, reasoning that reconciliation rather than retribution would steer them away from the killing fields and towards the high point of the hill on which they rested the democracy of the US.”
What Kenya told the ASP:
- Kenya is still a forceful, useful and engaged member of the Rome Statute.
- Reforms Kenya is suggesting are not outlandish but based on international norms.
- ICC cases are hindering Kenya’s reconciliation programmes.
- Prosecution of crimes against humanity is legal, but may not bring long term solutions to political conflicts.
- Kenya is not receiving enough respect from the ICC despite cooperating with it.
- Kenya is falsely being accused of obstructing ICC processes.
- Accused activists and other “functionaries” of rumour mongering against Kenya.
- Argued cooperation must be redefined in a manner acceptable to all ASP members.
- Opposed the suggestion to have an ICC police force meant to enforce Court directives around the world. Said such responsibility should go to ASP members.
