THE starting date for President Uhuru Kenyatta's trial at the Hague was yesterday postponed from November 12 to February 5. However the prospects of a request for a longer deferral by the UN Security Council remain unlikely even after yesterday's 'interactive dialogue' meeting in New York.
Yesterday trial judges Kuniko Ozaki, Chile Eboe-Osuji and Robert Fremr said that they could not refuse to grant a postponement since both Uhuru and ICC Chief Prosecutor Fatou Bensouda had agreed. They nevertheless cautioned the two sides against future postponements.
"The Chamber deeply regrets that repeated adjournments of the trial have been necessary because one or both parties have required more time to prepare. The Chamber urges both parties to accelerate their preparation in order to ensure that no further postponements are required," they said.
Lawyer for the victims, Fergal Gaynor, opposed the postponement and said it would be met with "deep disappointment and frustration" by the victims.
Uhuru requested a postponement on October 25 saying that Bensouda needed time to investigate his claims that prosecution witnesses had improperly contacted defence witnesses.
Bensouda accepted that she needed to investigate the claims.The court also ordered that she should delay bringing any Mungiki witnesses until she had investigated. She had been due to start Uhuru's trial on November 12 with nine witnesses, five of them who were Mungiki.
On Monday she said she could start with seven witnesses on November 12 if the court wanted. But she said that she could not guarantee that her new witnesses would be available at short notice and she might not be ready to present her evidence in a "logical and coherent sequence."
"The Chamber has selected a tentative trial commencement date that represents a compromise between the proposals of the parties," the judges said in their ruling yesterday. Uhuru wanted the trial to start on February 12 while Bensouda had proposed February 3.
Yesterday the UN Security Council failed to put a Kenyan deferral on its agenda for discussion, despite widespread media reports that it would be discussed. There is now no empty slot in the UNSC agenda until late November.
However the semi-official New York website 'What's in blue' indicated that the Security Council was unlikely to change its position on Kenya and instruct a deferral by the ICC. "Opinions within the Council on the question of a deferral have not shifted since the last interactive dialogue," said the website..
It said that Wednesday's meeting with African Union representative merely followed "past practice" of granting audience for informal exchange of views.
"While some members may express sympathy towards the AU position, several members will continue to maintain that the Council should not intervene in the proceedings against Kenya, particularly as Kenya, unlike Sudan, was not referred to the ICC by the Council," said the website..
"They maintain the position that the proceedings do not pose a threat to international peace and security and that the grievances against the ICC would be best addressed directly with the ICC," it said.
The website said a draft resolution authorizing the deferral proposed by the AU "would be unlikely to fly" as it would not get nine affirmative votes out of 15 as required by Article 27(3) of the UN Charter.
It said members of the council "may prefer to continue to discuss this issue in regular interactive dialogue sessions in order to better determine the possible options."
Previous "interactive dialogues" on March 18, 2011, April 8 2011, and May 23, 2013 did not achieve any breakthrough for Kenya."If they reject Kenya and the AU's application, that will not be the end of the world for Kenya and Africa. We will proceed with other options. As for the options, we will cross the bridge if we get there," a Kenyan diplomat in New York told the Star yesterday.
The most likely option would be to raise the issue of deferral in the ICC Assembly of State Parties later this month as all signatories of the Rome Statute will be in attendance. Another option would be to re-table the request at the UN ahead of the new February trial date.
Last night in New York, the UN General Assembly was discussing the Secretary-General's report on the ICC. "It is paramount that the Court, as a judicial body, exercise its mandate in full independence. To do this, it needs strong and consistent support from the international community," stated the report. Kenya was due to address the Assembly towards the end of the session on the issue of the ICC and deferral.