he International Criminal Court (ICC) seems to have bowed to the mounting pressure to give President Uhuru Kenyatta a break on regular appearance at The Hague. This looks like progress; especially when one considers that Kenya has spent the last month watching our Deputy President sit in a courtroom in a foreign land day in day out, doing and saying nothing. As Former Prosecutor Moreno Ocampo said, Kenya has become an example of how powerful the ICC really is, to the rest of the world.
But I think the decision on President Kenyatta just ‘looks like progress’, while in reality nothing much has changed. Let us be honest; the ICC wants the President in court during opening and closing sessions, hearings when victims present their views in person, during the delivery of judgment and (note carefully), at any other time when ordered by the Presiding Judge. Does this look like a decision that balances the Presidents responsibilities as a Head of State, with his obligations as an indictee of the ICC?
Isn't this the same Court that has a problem with the Kenyatta defense team referring to Mr. Kenyatta as President Kenyatta, when doing their filings? This is what a report filed in the Sunday Nation this last weekend says was a communication from the court. It seems the Court finds the use of the title ‘President’ by the defense inappropriate, and has directed the defense to refrain from using Mr. Kenyatta’s official title in their filings.
Now, considering the fact that the cases against the President could run for years this means that during the entire period, President Kenyatta is Mr. Kenyatta, and not Kenya's President, when in Court. However he has certain time-slots during the case when he is allowed by the court to be President Kenyatta and carry out those responsibilities that come with this designation. In essence whilst the cases are ongoing Kenya’s President will be switching from President Kenyatta, to Mr. Kenyatta, and back to President Kenyatta, at the discretion of the ICC.I wondr what Kenya’s constitution has to say about this.
But why would the court make such a decision? Are they really bowing to pressure from the African Union and finally accepting Mr. Kenyatta’s changed status? Or is this a decision meant to undermine the request due to be made to the United Nations Security Council (UNSC) by the Kenyan government over the next few days, asking for a deferral of the ICC cases for 12 months? Is the Court pre-empting Kenya’s argument to the UNSC that having President Kenyatta (and Deputy President Ruto I presume) at the court is affecting the leadership of the Kenyan nation, especially as regards national and global security? Could the ICC be telling the UNSC that no deferral is necessary because they have now accommodated Uhuru Kenyatta’s responsibilities as President, within his obligations as an ICC indictee?
I am inclined to believe the ICC has realized the duo has a valid case when they argue that the court is not treating them how it treats other Presidents of other countries, some with worse situations than the Kenyan one. We have given examples of Syria and Assad; America/Britain and Iraq, etc. I also think the Court has also realized that their argument that Uhuru and Ruto were indictees before they were President/Deputy President does not hold water anymore in a world where everyone else is treating them as Kenya’s Presidency, despite the indictments. This was especially apparent when the whole world reached out to President Kenyatta after the Westgate terrorist attack.
In response, the ICC has made a political decision despite their stated position that they do not allow politics to affect the operations of the court. This decision is to allow the President and maybe even the Deputy President ‘time-out’ of court during their cases. I also believe the Court is trying to preempt the United Nations Security Council (UNSC) discussion on whether to defer the Kenyan cases. By allowing the two indictees this leeway the court defuses the pressure that is rapidly building against it on these cases, and looks like it has adapted to the reality of the situation.
But I do not believe this is in good faith, because it refuses to acknowledge the reality of the situation. It ignores the need for everyone; starting from the Kenyan people, and including the ICC, to take a step back and allow a candid conversation in Kenya, about what is in it’s best interest after the last general election's decision. I personally believe Kenya needs at least one year to do this; because it must first heal and reconcile from the 2013 elections, before we can look at the issue objectively. The only body in existence today that can make this happen is the UNSC. The United Nations Security Council must give Kenya a 12-month deferral.
- See more at: http://www.the-star.co.ke/news/article-140399/un-security-council-must-defer-icc-cases#sthash.QmuuC7BT.dpuf
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