The Star (Nairobi)

Kenya: Govt Changes Tack On UN Security Council Bid

KENYA has changed its approach to the UN Security Council to adopt a new model which has higher chances of attracting a favorable outcome on the deferral of the ICC trials.

Sources involved in the drafting of a deferral request which has been sent to the council told the Star that Kenya's is hinging its request on internal and regional security threats.

Supplementary to this is the argument on the ICC's lack of credibility and its capacity to threaten international peace and security.

The paperwork has been harmonised with the latest ICC application by President Uhuru Kenyatta's lawyers calling for the immediate termination of the case against him.

In short, Kenya wants the cases done away with once and for all.

The request is anchored on provisions of Chapter 7 of the UN Charter which states that the Council "shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations or decide what measures shall be taken."

"In the past requests, we jumbled things up. We did not clearly separate the question of deferral pursuant to principle of complementarity and deferral due to threat to international peace."

"Further, despite the allegations of politicisation and bias of the ICC, the accused themselves continued to assert their confidence in the fairness of the proceedings at the Court, thus contradicting the whole thing," a source privy to Kenya's rquest said.

According to Article 16 of the Rome Statute, a UNSC deferral under chapter 7 of the UN charter can last for a year.

However, the UNSC can renew the request "under the same conditions."

Kenya is appealing to the UNSC as the body with the last word on international peace and security, and therefore superior to the Rome Statute.

The source said Uhuru's speech in Addis Ababa about the ICC was part of the new approach.

It is also the reason he filed a request to the court seeking termination of the case.

Last week, Uhuru's lawyer Steven Kay urged the trial judges to permanently stay the proceedings.

He accused the prosecution of interfering with the defence's investigations.

Kay told the court that three prosecution witnesses, OTP-118, OTP-11 and OTP-12, had contacted Uhuru's defence witnesses to subvert justice.

"I can tell you without fear of contradiction that the UNSC will not budge. A few members may be swayed but some of the permanent five will veto it. In any case, the UNSC has no jurisdiction on this. They do not have the final word,"Homa Bay Senator Otieno Kajwang said yesterday.

Kajwang said the UNSC will have to consider the long-term effects of conceding to the AU's demands on international peace and security:

"If it were granted that the cases are adjourned until they leave power, which President will agree to leave power to be hauled to jail? They will change constitutions and make themselves Presidents for life. In other words, deferral of the nature being sought will entrench dictatorships," he said.

He said locally, Uhuru would have to confront integrity issues since he "conned Kenyans" that ICC is a personal challenge only to turn back and pull the country along.

"You cannot change when people have relied on your word and acted in a certain way unless you want to be impeached."

The paperwork also makes reference to the Westgate Mall Attack.

It will be crafted in a manner to attract the appeal of UNSC permanent members who mind their internal security considerations.

Kenya is counting on UK to give in but is yet to win the favour of US and France.

Russia and China are likely to support Kenya.

Other non permanent members likely to support Kenya are Azerbaijan, Argentina, Rwanda and Togo.

Kenya is not certain about the support of Morocco, Australia, Switzerland and Korea.

It also emerged that there will be another extra-ordinary summit on November 30 to review how the UNSC reacts to the Kenyan request.

"If the AU is not happy with whatever decision the world makes, the threat of mass walkout will be a reality and likely to deal a big blow to the ICC," another senior government official said.

Saturday's AU extraordinary summit decided to set up a contact group of the Executive Council to consult with members of the UN Security Council, in particular its five permanent members.

The engagement with the UN Security Council is on all concerns of the AU on its relationship with the ICC, including the deferral of the Kenyan and Sudanese cases, in order to obtain their feedback.

"If the request does not get a response, Heads of State agreed to request postponement of the trial," AU chairperson Haile Mariam Desalegn said.

The summit also agreed that Kenya should send a letter to the UNSC requesting the deferral, in conformity with Article 16 of the Rome Statute, of the proceedings and this letter will be endorsed by all African states parties.

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