Kenya Trial: Tension As AU-ICC Row Escalates

diagnosis medicine geneva; font-size: small; line-height: 200%;”>The Second Vice-President of the International Criminal Court (ICC, there ampoule Court), here Judge Cuno Tarfusser on Friday hit back at the African Union, saying the court’s leadership “has no legal powers to consider arguments and concerns related to ongoing cases.”

Cuno further said that “such matters should be raised before the relevant Chambers in accordance with the Rome Statute and the ICC’s Rules of Procedure and Evidence.”

Observers are likely to perceive the ICC response as a huge slap in the face of the 54-nation-strong African Union.

On September 10, Ethiopian Prime Minister, Hailemariam Desalegn who is also the Chairperson of the African Union and Nkosazana Dlamini-Zuma (Chairperson of the African Union Commission), wrote to the ICC, calling for the referral of the court’s investigations and prosecutions “in line with the principle of complimentarily, to allow for a national mechanism to investigate and prosecute the cases under a reformed Judiciary provided for in the new constitutional dispensation.”

The AU officials said their letter conveyed “the decision of the 21st ordinary session of the Assembly of Heads of State and Government of the African Union.”


“In this connection, we are seriously concerned that the proceedings of the Court on the Kenyan defendants are beginning to adversely affect the ability of the Kenyan leaders in discharging their constitutional responsibilities,” said Desalegn.

He further argued that this is clear in the recent decisions of the Court in relation to the Kenyan situation where Trial Chamber V (a) allowed the Prosecutor’s appeal and granted the request for Suspensive Effect.

ICC Prosecutor, Fatou Bensouda

“This means that until the Prosecutor’s appeal against the decision to allow the Deputy President not to attend all Court sessions is decided, the

Deputy President will have to attend every session. The Trial Chamber in its earlier decision had taken cognizance of the Deputy President’s constitutional responsibilities on which basis the Court permitted him to attend only some sessions. On these grounds the Court should have upheld its decision pending the determination of the Prosecutor’s Appeal.”

Desalegn further said AU was “reliably informed that the Constitutional obligations of the Head of State of Kenya and his Deputy do not allow them to be out of the country at the same time. While Kenya has always cooperated and reiterated its commitment to continue cooperating with the court, it must do so in the context of its own Constitutional requirements.”

In his response today, ten days after receiving the AU letter, ICC Second Vice-President, Cuno, said “there are no pending requests before the ICC for the deferral of Kenya-related cases to Kenyan judicial institutions.”

He stressed that “the Judges of the Court must take all their decisions in accordance with the mandate and legal framework established by the States that created the Court – including the 34 African States that are party to the Rome Statute”.

Presidents Kagame and Museveni have since publicly criticised ICC’s double standards

Addis Summit

Observers say the clash between the organizations that brings together 54 African Countries and Hague-based Court could set the stage for a possible pullout from the Rome Statute when the Heads-of-state meet in Addis Ababa on October 13.

The development comes at a time when ICC is facing overwhelming resistance for reportedly instrumentalising international justice for political interests which continues to undermine peace processes as well as the sovereignty of African nations.

“We cannot support an ICC that condemns crimes committed by some and not others or imposes itself on democratic processes or the will of sovereign people. Such a court cannot facilitate reconciliation which is a vital precursor to peace,” Rwanda President, Paul Kagame, told a recent African Union Summit in Ethiopia.

Speaking at Kenyatta’s inauguration in April, Museveni saluted Kenya for the “rejection of the blackmail by the International Criminal Court (ICC) and those who seek to abuse this institution for their own agenda.”

“I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution. They are now using it to install leaders of their choice in Africa and eliminate the ones they do not like,” he emphasized.

Kenya has already decided to pull out of the Rome Statute that saw the formation of the court.

In 2011, Zimbabwe President Robert Mugabe told the United Nations that ICC had turned a “blind eye” to crimes by Western leaders, damaging its reputation in Africa.

The court “seems to exist only for alleged offenders of the developing world, the majority of them Africans. The leaders of the powerful western states guilty of international crime, like Bush and Blair, are routinely given the blind eye. Such selective justice has eroded the credibility of the ICC on the African continent,” he added.

With the anti-ICC chorus gaining momentum, African leaders are next month expected to determine whether they can move forward with this court.


In his letter to the ICC, Desalegn said Kenya as a member of the international community and an active participant in the international arena will dearly be disadvantaged should the Suspensive Effect be allowed to continue.

This means, said Desalegn, that during the absence of the Deputy President at the trial, the President of Kenya will automatically be prevented from meeting his International obligations which include the forthcoming United Nations General Assembly High Level Segment scheduled to take place from 23-27 September 2013, and the European Union facilitated “New Deal Somalia Conference” scheduled to take place on 16 September 2013, in Brussels.

The AU further argued that participation in both conferences at the highest level is critical for Kenya in its trajectory and efforts towards peace and security both at the national and regional levels.

“Five years ago, Kenya was grappling with its own internal problems and five years later, commendable progress has been made towards recovering from the post-2007 election violence. The measures put in place towards restoration of peace and national reconciliation have been spearheaded and championed by the President and his Deputy,” the letter, which Chimpreports has seen, reads in part.

The African Union further said Kenyans democratically elected their leaders in March 2013, and they expect that them to discharge their constitutional responsibilities as elected executive leaders.

“In this regard, Kenyans greatly anticipate celebrating 50 years of their Independence and other national days, under the guidance and visionary leadership of their duly elected leaders. This will be adversely impacted by the process at The Hague. Bearing this in mind and its consequences on the region, the recent decision of the Court will undermine progress and threaten Kenya’s peace and stability,” the letter added.

Desalegn expressed disappointment that the Prosecution had “ignored several procedural requirements having the effect of eroding the principles of natural justice. The Court’s attention has been drawn to this aspect on two occasions by its own Judges.”

He warned: “This leaves the African Union with no option but to ask that until the request of the AU is considered and clearly responded to, the cases should not proceed. Therefore, on behalf of the African Union, we would like to request the Court, in light of the above-mentioned reasons, to allow the Head of State of Kenya and his Deputy to choose the sessions they wish to attend in accordance with their Constitutional obligations and duties that they are required to fulfill and for which they are accountable to the people who elected them.”

Cuno today said the ICC “remained fully committed to friendly and cooperative relations with the African Union in the spirit of the AU’s and ICC’s shared values.”

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