16 November 2013

Kenya: UN Rejects AU Deferral Request

Photo: Julius Mwelu/IRIN
A pregnant woman runs past burning shacks in Nairobi during the 2007 post-election violence which led to the trials.

KENYA's and the African Union's request to have the ICC cases deferred for a year was yesterday rejected by the UN Security Council.

Only seven countries voted in favour of the request, two less than the number needed to have it accepted by the 15-member body.

Eight council members who are either ICC members or support the court abstained. They include permanent council members with veto powers UK, France and the US.

It is the first time in decades that a Security Council resolution has failed in such a way without being vetoed. The council decided that Uhuru must attend the trial as scheduled by the ICC.

According to Article 27 of the UN Charter, decision of the council on matters other than procedural ones require an affirmative vote of nine members including "concurring votes of the permanent members."

With three permanent members opposed to Kenya, this threshold was too high to be met. At the ICC state parties meeting slated for next week at the Hague, several amendments to the rules of procedure and evidence have been proposed.

The one most relevant to Kenya is amendment to Rule 100 which will make it easier for trials to be moved away from the Hague. An amendment to Rule 134 proposed by Botswana, Liechtenstein and Jordan seeks to expressly provide for trial via video-link.

Kenya is seeking the amendment of Article 63(2) to include excusal from continuous attendance of accused persons who cooperate with the court; Article 27 which seeks to grant immunity from prosecution to sitting heads of government and Article 70 to allow for court officials to be charged with offences against the administration of justice.

Kenya also wants Article 122 amended to enhance the powers and scope of Independent Oversight Mechanism as well as changing the preamble of the Rome Statute to say that ICC is complementary to regional criminal jurisdiction and not national criminal jurisdictions as it says currently.

A three-month notice is required to be given before any proposed amendments to the statute are submitted. Kenya had not given notice about the amendments it is proposing.

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