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The Kenyans, with help from the African Union, had instituted reforms to bolster more transparency in the electoral process and to foster reconciliation

Africa Feels Slighted by the UN Security Council



“Let it be written in history that the Council failed Kenya and Africa,” exclaimed Rwanda’s United Nations Ambassador Eugène-Richard Gasana last Friday to the United Nations Security Council. He and other African delegates spoke out after the Security Council rejected a resolution proposed by African member states and their regional group, the African Union, seeking a one-year delay in International Criminal Court (ICC) proceedings against Kenya’s President Uhuru Muigai Kenyatta and Deputy President William Samoei Ruto.
Although they were duly elected to their offices in a peaceful, orderly election earlier this year and are still dealing with the aftermath of the horrific terrorist attack at the Westgate Mall that killed 67 people, they are now having to face a trial by the ICC for their alleged indirect involvement in violence that gripped Kenya in late 2007 and early 2008 following the previous presidential election. Security Council resolutions need nine votes in the 15 member body and no vetoes to pass. Seven members, including Russia and China, voted in favor, and eight abstained, including France, the U.S. and the United Kingdom. The African-sponsored draft resolution, which thus fell two votes short from passing, had requested the Security Council, under its authority pursuant to Chapter VII of the United Nations Charter for maintaining international peace and security, to ask for a deferral of the investigation and prosecution of President Kenyatta and Deputy President Ruto for 12 months. Article 16 of the Rome Statute, which established the ICC, permits such deferral upon the Security Council’s request.

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Kenya and its other African supporters had tried to argue that Kenya was on the front line fighting one of the world’s biggest threats to international peace and security, the scourge of terrorism in its own homeland and in neighboring Somalia. Moreover, Kenya was not seeking impunity for its leaders, they noted. In simply seeking a postponement of the ICC proceedings, they argued, Kenya deserves to be given the benefit of the doubt as to its assessment of the immediate impact of distracting its leaders from dealing with the clear and present danger of more terrorist attacks in the aftermath of the recent slaughter at Kenya’s Westgate Mall committed by Al-Shabaab. Not to do so amounted to a lack of respect, the African delegates emphasized, not only for Kenya but for all of Africa, which backed Kenya’s request. “African Heads of State and Government had proposed a solution to the Kenyan issues, but Western Powers had an alternative solution in mind,” said Ambassador Gasana. Africans hoped that the Security Council would express “solidarity with Kenya and Africa” and engage in good faith negotiations of acceptable text in the draft resolution. Instead, he charged, some Security Council members refused to negotiate any part of the resolution. “Hear Africa,” Ambassador Gasana said. Africa will continue to fight for “mutual respect” among nations and “equal sovereignty,” the Rwandan ambassador declared. “African dignity” demanded no less. Tekeda Alemu, Ethiopia’s UN ambassador, speaking in his country’s capacity as current chair of the African Union, said that the matter was not simply a Kenyan one, but an African one that had caused great concern for regional peace and security. “The Commander-in-Chief of the Kenyan Defense Forces ought to be given support,” rather than be distracted at this time by the ICC, “a body whose track record on African matters did not inspire confidence,” he said. Noting that the African Union does not allow sovereignty to be used as a shield for impunity, he expressed sorrow that the Security Council’s rejection of the African Union-backed resolution demonstrated that some on the Security Council believed that African leaders are “not to be trusted.” African countries could thrive through partnerships, as had been seen in Somalia, Sudan-South Sudan and Mali, he said, pointing out, however, that “today’s response to the deferral request would lead many to conclude that Council members had difficulty seeing Africa exercise ownership over its policies and strategies for peace.” Kenya’s Ambassador Macharia Kamau said Africa had come to the Security Council in the belief that the 15-member body was “in command of its own reality and the master of its mandate.” It was not seeking “a favor” or “handout,” he said. Rather, Kenya and Africa as a whole were asking for equal application of the “spirit and letter” of the Rome Statute. This included Article 16’s investigation and trial deferral provision that allowed the Security Council to intervene and request a delay in the ICC’s proceedings if warranted by circumstances affecting international peace and security. However, Ambassador Kamau added, sadly Africa had learned that despite the Security Council’s own recognition of the recent terror attacks in Nairobi as threatening to international peace and security, “that recognition counted for little in the Council when Article 16 was under consideration.” Reason and the law had been “thrown out the window,” he said. Instead, “distrust” in Africa’s ability to take ownership of “our own affairs” and a “paranoid fear” that Kenya’s request could potentially set a bad precedent for future abuse of the deferral provision had been allowed to prevail. The United States, France and the United Kingdom, along with other members of the Security Council who were also signatories to the Rome Statute, did not buy the African delegates’ arguments. They abstained rather than vote no on the resolution, but the abstentions worked just as effectively to block it from passing. Some of the abstainers complained in their statements after the Security Council vote that the African countries had needlessly insisted on bringing the resolution to a vote, even though they knew it would fail, resulting in a public display of a divided Security Council. Ironically, the display of a divided Security Council did not seem to matter to the U.S., UK and France when they insisted on public votes on a series of resolutions condemning the Syrian regime, even though they knew the resolutions faced certain vetoes by Russia and China. Several of the abstainers on the Security Council who were also signatories to the Rome Statute expressed concern about setting a bad precedent that could undermine the work of the ICC. The issues raised by Kenya and its supporters are more appropriate for handling by the ICC’s Assembly of States Parties which meets this week at the Hague, they contended. Moreover, argued the United Kingdom’s UN Ambassador Mark Lyall Grant, the Security Council could only authorize a deferral of the ICC proceedings against Kenya’s president and deputy president if continuing the ICC’s proceedings in and of itself constituted a threat to international peace and security. Kenya’s situation did not meet that threshold, he concluded. The United States, which is notably not a member of the ICC, nevertheless shared the concerns of the Rome Statute signatories, according to U.S. Ambassador to the UN Samantha Power. She also said that the victims of the violence in 2007-2008 deserved justice, which can best be accomplished by the ICC. “At the same time,” Ambassador Power added in her remarks on the U.S abstention, “we want to emphasize our deep respect for the people of Kenya. We share their horror and outrage at the recent Westgate Mall terror attacks and understand their desire both for effective governance and for accountability under the law. We are mindful, as well, of the importance of these issues to the member states of the African Union that have raised similar concerns. We recognize that the situation the Court is confronting in these cases is a new one – the ICC has never before had a trial of a defendant who is also a sitting head-of-state, or a person who may act in such a capacity, and who has appeared voluntarily subject to a summons. Accordingly, we are encouraged that Kenya is continuing to pursue its concerns through an ongoing ICC process.”

These are nice words recognizing Kenya’s recent experience with the “horror” of a terrorist attack, declaring “respect” for the Kenyan people

These are nice words recognizing Kenya’s recent experience with the “horror” of a terrorist attack, declaring “respect” for the Kenyan people, and acknowledging the Kenyan government’s ongoing cooperation with the ICC and the novel issue presented by an international trial of duly elected sitting government leaders. However, the U.S. and its allies on the Security Council decided that Kenya’s request for a deferral did not merit a positive response. Legal niceties and fear of setting a bad precedent were more important to them than backing up their words of sympathy with the simple gesture of giving Kenya’s leaders some space to deal with the aftermath of the Westgate Mall terror attacks and the threat of more attacks to come. The ICC charges at issue stemmed from waves of violence in Kenya following the announcement of disputed election results on December 30, 2007. Over 1,200 persons were killed and at least 300,000 displaced. Around 42,000 houses and many businesses were looted or destroyed. A significant number of cases of sexual violence were also reported. The election had pitted incumbent President Mwai Kibaki against opposition candidate Raila Odinga of the Orange Democratic Movement (ODM). President Kibaki declared victory and was immediately sworn in for a second term, despite evidence of a fraudulent vote count. The opposition refused to accept the election results, precipitating the waves of violence. A political power-sharing settlement between Kibaki and Odinga, brokered by former United Nation Secretary General Kofi Annan, was signed on February 28th 2008, ending most of the violence. The National Accord and Reconciliation Act was enacted, establishing the office of Prime Minister and creating a coalition government with Kibaki as President of the Republic. The Cabinet, headed by Odinga as Prime Minister, was sworn in on April 17, 2008. Several state agencies and special commissions, including the Kenya National Commission on Human Rights, launched investigations into the causes, perpetrators and effects of the violence. A number of alleged perpetrators and planners of the violence were named in a report by the Kenya National Commission of Human Rights, including prominent politicians in both parties. Uhuru Kenyata was on this list for allegedly taking part in planning and contributing funds for the purpose of retaliation against the initiators of the violence. Kenya was supposed to establish its own tribunal at the national level to prosecute those who were responsible for the violence. However the government failed to meet a September 2008 deadline to establish a local tribunal, which is why the International Criminal Court decided to step in.

Kenya has been a State Party to the Rome Statute since March 2005

Kenya has been a State Party to the Rome Statute since March 2005, which allows the ICC to have jurisdiction over Kenya’s criminals and certain crimes committed by them in its territory. According to the Rome Statute, State Parties, as they are called, are obligated to cooperate fully with the ICC in investigations and prosecutions of crimes within its jurisdiction. However, the ICC is a court of last resort, which only has jurisdiction if the local judiciary is unable or unwilling to investigate and prosecute the alleged crimes itself. Under the principle known as complementarity, national prosecutions of international crimes have priority. However, in the absence of an impartial mechanism within Kenya to deal with the alleged crimes, the Prosecutor of International Criminal Court, Luis Moreno-Ocampo, notified the President of the Court on November 5, 2009 of his intention to submit a request for the authorization of an investigation pursuant to article 15(3) of the Rome Statute into the post-election violence in Kenya. The request was granted. The ICC prosecutor charged that Uhuru Kenyatta, among others, "committed or contributed to" the killings of supporters of the opposition Orange Democratic Movement, the deportation or forcible transfer of ODM supporters, the rape and other forms of sexual violence against ODM supporters, the persecution of civilians based on their political affiliation and other inhumane acts. The Pre-Trial Chamber found reasonable grounds to believe that Kenyatta was criminally responsible as an indirect co-perpetrator of crimes against humanity. While the ICC was proceeding with its investigations, the government of Kenya announced belatedly in December 2010 that a “local judicial mechanism” would be established in order to probe the 2007-2008 post-election violence in the country. Kenya subsequently filed an admissibility challenge before the ICC, claiming that Kenya was capable of investigating and prosecuting the suspects. The ICC judges rejected the challenge on the grounds that a promise to investigate is not enough to stop an existing ICC case, which is still proceeding. Meanwhile, nearly six years after the previous election that had spawned the violence, Uhuru Kenyatta, who was the Deputy Prime Minister, won the presidential election in Kenya with 50.07 percent of the vote. Challenger Prime Minister Raila Odinga initially refused to concede defeat, but this time both sides urged Kenyans to avoid violence and calm prevailed. The Kenyans, with help from the African Union, had instituted reforms to bolster more transparency in the electoral process and to foster reconciliation. It worked. Kenya is trying to build the institutions of a viable democracy, including for the administration of justice for the victims of crimes committed on Kenyan territory. And Kenya has also shown its commitment to fighting terrorism both within and outside of its own borders. Such behavior deserves to be rewarded – not with a free “get out of jail” pass for its leaders’ past transgressions, but with some breathing room for them to carry out their constitutional responsibilities now that they have been duly elected through a peaceful, democratic process. It is against this background that Kenya and its other African partners have challenged the UN Security Council to stop treating Africans as wards of the Council. In Africa’s view, the Security Council failed this test. How African member states’ future relationship with the Security Council and the International Criminal Court will be affected going forward remains to be seen.


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Joseph A. Klein, CFP United Nations Columnist -- Bio and Archives

Joseph A. Klein is the author of Global Deception: The UN’s Stealth Assault on America’s Freedom.


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