Enough talk of deferral: Let the rule of law prevail for Kenya

 
On 15 November 2013, the United Nations Security Council rejected a bid to defer the cases against Kenyan President Uhuru Kenyatta and Deputy President William Ruto at the International Criminal Court.
The proposal was put before the Security Council as a result of the African Union Extraordinary Summit in October 2013, which decided among other things that African States should seek a deferral using article 16 of the Rome Statute.
 
“The African Union and African States Parties quite properly followed the Rome Statute Article 16 procedures in seeking a deferral of the cases against President Kenyatta and Deputy President Ruto”, said Alison Smith, Director of NPWJ’s International Criminal Justice Program, reacting to today’s news from the Security Council.
 
“It was and is tremendously important that the political concerns of Kenya and other African States be taken seriously and addressed in Security Council. While NPWJ does not support a deferral, we strongly endorse the Article 16 process, which ensures that political concerns in relation to the ICC are addressed in a political venue at the Security Council.
 
“In this case, we are however concerned and disappointed that Kenya and the co-sponsors of the resolution have taken advantage of the Security Council willingness to give all due consideration to their concerns, by pushing for an unnecessarily divisive vote, while it was clear that the numbers for that proposal to pass simply did not exist.  At a time when the AU and the UN need to work together with a common vision for peace and security in Africa, pushing for a vote that they knew they would lose did not serve any purpose but to sow divisions that both institutions can ill afford. The only result we have from today is to demonstrate, and in so demonstrating to deepen, division within Security Council members.
 
“Nonetheless, the issue has been now been discussed and it has been decided: there is to be no deferral. We very much hope that the proponents of impunity for the Kenyan post-election violence will not rehash the issue, particularly at the upcoming ICC Assembly of States Parties (ASP) meeting next week in The Hague. The UN Security Council is the only organ that can legitimately suspend ICC proceedings under certain conditions. The ASP is not the place for discussions of individual cases, so it would not help either the accused or the Court to seek to involve the ASP in a deferral discussion that was addressed and laid to rest by the Security Council.
 
“We think it very important that people be clear that this is not about division “on Africa”.  This is not a situation of States declaring themselves “for or against” Africa.  This is an issue is about impunity and about specific allegations of the individual criminal responsibility of two leaders.  We are glad that through their abstentions, the majority of the Security Council has recognised that this is not a political issue, but a judicial issue to be determined in Court.
 
“The best thing that can happen for peace and security in Kenya and in Africa is for justice to take its course and for President Kenyatta and Deputy President Ruto to take advantage of the flexibility offered to them by the International Criminal Court to allow them to continue to carry out their official duties while the cases against them proceed.  We urge Kenya and her leaders to continue to cooperate with this process - the best way to support Kenya and indeed Africa as a whole is to ensure that the rule of law applies to everyone equally, including Heads of State.
 
“This would be the best legacy that the President and Deputy President can give their country, no matter the outcome of the cases against them.”
 
 
For more information, contact Alison Smith on asmith@npwj.org or +32-2-548-3912 or Nicola Giovannini on ngiovannini@npwj.org or +32-2-548-3915.