African foreign affairs ministers are considering a proposal to audit the progress Kenya has made towards reconciliation and reform following the political violence that rocked the country five years ago and led to the current president and deputy president being charged before the International Criminal Court (ICC).
The audit has been proposed as a follow-up to the work of the African Union (AU) panel that former United Nations chief Kofi Annan led, said Tedros Adhanom Ghebreyesus, Ethiopia’s foreign affairs minister. He was speaking in his capacity as the chairman of the AU Executive Council at the opening of the council’s special session on Friday. The Annan-led panel negotiated the end of the violence that followed the December 2007 presidential poll in a deal that included a government-appointed investigation into the violence. The government inquiry eventually led to the ICC intervening in the Kenya situation.
“Unfortunately, the AU-led reconciliation and reform process has been scuttled by the ICC leading us to the current state of affairs that we find ourselves in,” Tedros said, speaking at the AU headquarters in the Ethiopian capital, Addis Ababa. “Therefore, we need to start from where this African Union-led reconciliation and reform process stopped. In accordance with the African Union Roadmap, we should be able to assess the progress that has been made in terms of implementation.”
Tedros said that the proposal was to let a group, called the High Level Observer Group, conduct the audit. Before he talked about the audit proposal, Tedros, made a scathing attack of the ICC, saying the court’s treatment of African states and African citizens is the reason the African foreign affairs ministers were meeting Friday. The recommendations the ministers agree on will be presented to African presidents and prime ministers on Saturday for their decision during the AU extraordinary summit on the ICC.
“Far from promoting justice and reconciliation and contributing to the advancement of peace and stability in our continent, the Court has transformed itself into a political instrument targeting Africa and Africans,” said Tedros in his speech. “This unfair and unjust treatment is totally unacceptable and that is why we have been expressing our serious concerns against the ICC,” Tedros continued.
He said that he led an AU delegation to meet with ICC President Sang-Hyun Song earlier this year to find “a sustainable solution,” to AU’s concerns about the court’s handling of the Kenya cases. Tedros said he presented Sang-Hyun with a letter jointly signed by AU Chairman Hailemariam Desalegn and AU Commission Chairwoman Nkosazana Dlamini-Zuma, which highlighted the AU resolution made in May that the Kenya cases should be referred back home.
“However, we did not receive the desired response from the Court,” Tedros told his fellow foreign affairs ministers. He said that President Uhuru Muigai Kenyatta and Deputy President William Samoei Ruto should be allowed to choose which sessions of their trials they will attend because of the constitutional obligations they had to fulfil as Kenya’s top leaders.
Tedros said the Appeals Chamber’s decision to require Ruto attends all his trial hearings made it difficult for the Kenyan leaders to run their country. The Appeals Chamber is considering a challenge the prosecution has made of a decision by trial judges to allow Ruto to attend only part of his trial. The appeals judges, however, said that until they reach a decision, Ruto should attend all his trial hearings.
“However, the recent terrorist attack in Nairobi has further reinforced our request thereby underscoring the need for Kenyan leaders to be front and centre in the fight against terrorism and not be distracted in any way by the Court,” Tedros said, referring to the September 21 Westgate Shopping Mall attack in which more than 60 people were killed. That attack led to the trial of Ruto and former radio journalist Joshua arap Sang being suspended for about 10 days to allow Ruto return to Kenya and help in the efforts to end the four-day siege of the mall.
The ministers will also be reviewing a report by the AU Commission on the progress made on the various resolutions the organization has made touching on the ICC and international justice. At their summit in May, African leaders asked the commission to provide such regular feedback. The commission is in charge of the day-to-day operations of the AU.
The 13-page report retraced the legal and diplomatic steps Kenya and the African Union have taken since the ICC opened an investigation in 2010 into the Kenya cases. The report, a copy of which ICC Kenya Monitor obtained, also charted the political and legal options open to the AU in handling the Kenya cases. The report has mentioned Sudan only in passing even though the country was the subject of the first deferral request by the AU to the United Nations Security Council.
It noted that because Kenya has already challenged at the ICC whether the court should take up the Kenya cases and failed, the country is left with two provisions in the Rome Statute of the ICC to challenge the cases. These are Article 17 and Article 20 of the Statute.
“To do so, the Government of Kenya shall prove that the persons concerned have already been tried for conduct which is the subject of the ICC proceedings, and a trial by the Court is not permitted under Article 20, paragraph of the Rome Statute,” the report stated, referring to the trials of President Uhuru Muigai Kenyatta, Deputy President William Samoei Ruto, and former radio journalist Joshua arap Sang. Article 20 deals with the grounds for someone not being tried by the ICC. These grounds include if they have already been convicted by the ICC or they are being tried in another court for crimes that fall under the jurisdiction of the ICC.
The report’s recommendation is that for a fresh admissibility challenge to succeed Kenya should seek a deferral of the ICC’s prosecution through the UN Security Council. In support of such a deferral request, “it is important that the Government of Kenya prepares an Aide-Memoire on the actions that would be undertaken by the Government during the period of one year, if deferral is granted,” the report recommended.
Under the political options available to the AU, the report recommended that the organization carries out coordinated and high-level lobbying in favor of an AU deferral request. This lobbying should involve the ambassadors of the African Group at the UN holding bilateral meetings with members of the Security Council including the five permanent members. The lobbying should also involve the AU Executive Council Chair and other foreign affairs ministers holding meetings with their counterparts whose countries sit on the Security Council, the report recommended.
Ethiopian Foreign Affairs Minister Tedros Adhanom Ghebreyesus also emphasized this in his speech on Friday:
“Last but not least, we should do everything possible to table the issue (of deferral) on the agenda of the United Nations Security Council so that it is given the necessary attention and thoroughly discussed with a view to finding a political solution,” Tedros said. “In this regard we should device a mechanism on how best to convince the members of the UNSC, particularly the Permanent Five (members of the council).”
Kenya asked for this special AU summit that is focused solely on Africa’s relationship with the ICC, said Tedros. Kenya’s Foreign Affairs Secretary, Amina Mohammed, however, had told journalists on Wednesday that two countries she declined to name had called for the summit. The African Union holds biannual meetings of its leaders at the beginning and in the middle of each year. Any summit outside these regular ones has to be approved by two-thirds of the 54 member states of the AU.
This year Ethiopia holds the rotating chairmanship of the African Union, which is why Tedros chairs the AU Executive Council and Ethiopian Prime Minister Hailemariam Desalegn is the AU Chairman.