The Star (Nairobi)

Kenya: U.S. Warns of ICC Consequences

Photo: Rick Bajornas/UN
Fatou Bensouda, prosecutor of the International Criminal Court (ICC)

THE shadow of the ICC is continuing to lengthen over the Jubilee presidential ticket of Uhuru Kenyatta and William Ruto.

Yesterday Obama's top envoy to Africa Johnny Carson warned Kenyan voters that "choices have consequences" while re-iterating President Obama's statement that America is not supporting any particular candidate.

British High Commissioner Dr Christian Turner told Citizen TV that the British government would not deal with Deputy Prime Minister Uhuru Kenyatta if he was elected president while still facing trial at the ICC, except on "essential business".

And this week ICC Chief Prosecutor Fatou Bensouda requested the court to order Uhuru, Ruto to make a public declaration that they will not fail to attend trial along with former Civil Service chief Francis Muthaura and broadcaster Joshua arap Sang.

The ICC trials of the Kenya Four on charges of crimes against humanity are due to start on April 10 and 11, the date also scheduled for any second round run-off in the presidential election.

Yesterday Johnny Carson clarified that the American president's Tuesday message to Kenyans was not an endorsement of Uhuru and Ruto.

He warned in a tele-conference that "choices have consequences" and that Kenya "lives in inter-connected world" where "people should be thoughtful about the impact of their choices on the nation and the world."

The US Assistant Secretary of State for African Affairs said national leaders are responsible for their actions before, during and after the election.

"Accountability for political violence including that perpetrated during the 2007/2008 electoral crisis is an important part of building a peaceful and prosperous country," he said at the tele-conference at the US embassy in Nairobi.

He said Obama was clear that Kenyans are the ones who must decide on their leaders. He insisted that people should be conscious of the impact of their choices on their "nation, on the region, on their economy, on the society and the world in which they live."

"Individuals have reputations, individuals have images, images have histories, individuals are known for who they, what they do, what they say and how they act," he said.

On possible sanctions, Carson said the US could not engage in an hypothetical answer about an outcome which it is not yet certain. However he pointed out that the US does not engage the ICC indictees in Sudan.

Carson also emphasised that Kenya is America's "most important partner in East and Horn of Africa" and that whatever happens in Nairobi has enormous impact in East Africa and the world.

Carson sounded much sharper that President Barack Obama in his televised address to Kenyans on Tuesday where he said that his government was not taking sides in the election adding that the international community would respect the will of Kenyans.

On Wednesday night Dr Turner told Citizen that Britain's policy of 'no contact' with the ICC suspects will remain in force even if Uhuru wins on March 4.

"The policy of my government remains that we do not have contact with ICC indictees unless it is essential. That is not only the policy of my government but also the policy of all the European Union and indeed most other international partners," Turner told Citizen TV.

Yesterday, the British High Commission head of communication, John Bradshaw, said it would be "speculative" to define "essential business" at this stage.

Turner explained that his government was not taking sides in the presidential race but that Kenya must continue cooperating with the ICC whoever wins the election.

"What I am saying is that Kenyan people must decide and whoever wins, as long as they carry on cooperating with the ICC, we will do our best to work with them," Turner said.

The UK envoy also said that he did not want to speculate what his government would do if Uhuru and Ruto are elected into office.

"Those charges are not charges against the government of Kenya. They are not charges against the Jubilee Coalition, against TNA or URP. They are not charges against a tribe but against individuals and that is because this is a judicial process," Turner said.

Turner commended Uhuru and Ruto for their continued declaration that they would continue cooperating with the ICC regardless of the outcome of the election.

"It is not the West that brought these cases to The Hague. Remember the phrase 'don't be vague, let's go to the Hague'. It was the Kenyan Parliament that referred the cases to The Hague. Having done that, it is essential that the cooperation with the ICC continues. Whoever wins, stopping that cooperation is something that would be troubling," Turner said.

There has been speculation that the international community would impose sanctions on Kenya with sanctions if Uhuru and Ruto failed to turn up for their trials.

On Wednesday ICC Chief Prosecutor Fatou Bensouda applied to the court for the four Kenyans to make a public declaration before the judges that they will not fail to attend trial.

However Ruto is asking the judges to give his lawyers more time to prepare for trial citing delayed disclosure by the prosecution.

His co-accused, Joshua Sang, wants the court to assess the impact of the withdrawal of prosecution witnesses on the prosecution's Pre?Trial Brief.

The three were making submissions in before next Thursday's status conference where the suspects are required to attend either in person or by video link. Uhuru Kenyatta and Muthaura's submissions had not been made public by yesterday.

Bensouda told the judges on Wednesday that she still reserves the right to ask for arrest warrants "should the Accused violate their summons conditions, including the requirement of attendance at trial." Bensouda also said that she will continue to alert the judges of any systematic attempts to bribe or threaten witnesses.

"The relevance of these incidents extends beyond the issue of compliance with the summons conditions - they assist in understanding the unique pressures on Prosecution witnesses, which will in turn assist the Chamber in assessing their trial testimony," Bensouda said.

Ruto and Sang asked if the judges could allow them to stay within 60 kilometres of the Hague given the expected length of the trial. Presently, they should remain within 30 kilometres. Ruto also complained about late disclosure of prosecution material.

"It is submitted that such extensive late disclosure, still continuing, was anticipated by neither the defence nor the Chamber. In those circumstances the defence invites the Chamber to consider providing the defence with more time to prepare its case," Ruto said. Sang told the judges that he is concerned about the volume of prosecution evidence.

"This significantly broadens the background of the allegations against the accused and places an onerous investigative burden on the defence very close to the start of trial," Sang told the judges.

Sang also asked the judges to indicate how the court intends to alternate between his trial with with Ruto, and the trial of Uhuru and Muthaura. Sang also complained that his legal aid had been reduced by a third since June 2012.

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