Saturday, July 13, 2024

Setback :Kenya fails to convince ASP against Bensouda

KENYA has suffered a major setback in its bid to “expose” the ICC, after the Assembly of States Parties rejected its agenda to discuss the conduct of the court’s judges and prosecutors.

The 13th session of the ASP begun on Monday and meets until December 17 at the United Nations, New York.

Incoming ASP President Sidika Kaba yesterday informed the states that the Kenyan agenda will not be included, to the chagrin of Kenyan representatives in the US meeting.

“The Bureau does not recommend inclusion of the Kenya agenda item on conduct of the Court and Prosecutor,” the former Senegalese Justice Minister said, dealing Kenya a serious blow.

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Sources at the meeting indicated that Kenya was still determined to introduce the matter “through the back door”, especially as the court’s signatory states are scheduled to discuss the issue of cooperation between member states and the ICC.

“The work programme has been adopted. Kenya can only arise in the general debate, cooperation and presentation of the report of the ICC’s work,” said Stephanie Barbour, head of Amnesty International’s Centre for International Justice in The Hague.

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ICC Prosecutor Fatou Bensouda maintained on Friday last week, as she withdrew the charges against President Uhuru Kenyatta, that “the Kenyan Government’s non-compliance compromised the Prosecution’s ability to thoroughly investigate the charges”.

Kenya had requested a supplementary agenda item to table an account of what it terms gross violations of the Rome Statute by the global court. It accuses the ICC of politicising the cases, incorrectly interpreting the Rome Statute and continuing to prosecute cases that do not meet evidentiary thresholds.

Kenya’s Permanent Representative to the United Nations, Macharia Kamau, protested that the Kenyan request was being frustrated by “conservative and non-reformist states”.

“Kenya continues to meet with frustration as its request for the inclusion of a supplementary agenda item is being systematically and categorically subverted by a formidable cabal of conservative, non-reformist States Parties that find change and institutional self-examination threatening and unfathomable,” he said in a letter to the ASP leadership.

Macharia maintained that, at 10 years, the ICC is old and strong enough to receive and respond to criticism.

“The current state of affairs at the ICC is … at best below par and at worst embarrassing and even counterproductive to the pursuit of justice and peace and security in the world,” he stated.

Despite the withdrawal of charges against Uhuru, Kenya is still keen on the ICC agenda because of the trial against Deputy President William Ruto.

The latest decision indicates that the states have sided with the court. The members made a passionate plea to the ASP leadership to reject the Kenyan agenda.

ICC top officials, including the President, Sang-Hyun Song, maintained that Kenya’s agenda could undermine the independence of the Court and could also be sub judice (prohibited from public discussion elsewhere while under judicial consideration).

Kenyan civil society groups who have a strong presence at the US meeting are split in their support for the ICC.

The Kenyan Citizen Coalition, led by Ngunjiri Wambugu, former presidential running mate Ronald Osumba and High Court advocates Njenga Mwangi and Lydia Kwamboka, are supporting the Kenyan state.

However, Kenyans for Peace with Truth and Justice (KPTJ), led by International Commission of Jurists (ICJ) executive director George Kegoro, are backing the ICC intervention.

In his maiden speech, Kaba, the first African to head the Assembly, pledged to focus on repairing the frosty relations between Africa and the ICC, strengthening cooperation with the court and deepening complementarity (building preparedness to investigate and prosecute at the national level).

“The first challenge I think we can all agree upon is that there is a real malaise, not to say a crisis, between the ICC and some regions of the world,” he said.

“This is why I will work to remind that Africa cannot be against the Court, because, as I said earlier, 34 of our States, constituting the largest regional group, have ratified its statute, and the first one to do so at the global level was African,” he said.


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