By Ndungu Wainaina
International Center for Policy and Conflictâ€™s (ICPC) attention is drawn to assertions made by the Deputy President William Ruto, an accused person at the International Criminal Court (ICC).
Mr. Ruto wants the United Nations Security Council (UNSC) to effect deferral and/or halt the Kenyan case at the ICC to enable him and his co-accused President Uhuru Kenyatta have time to address national and regional security concerns caused by terrorism threats.
This invocation of terrorism threats as reasons to stop or defer criminal proceedings against Mr. Ruto and Mr. Kenyatta is very curious coming shortly after the Westgate attack, whose details the government of Kenya has refused to provide to the public.
The United Nations Security Council and the ICC should vigorously object to these attempts of interference with judicial process for the following reasons:
1. ICC became the crucial court of last resort after the government of Kenya failed to demonstrate will and ability to conduct genuine national criminal proceedings against those responsible for macabre crimes of 2007/08 vicious violence. Six years later, the government has not even commenced proceedings against majority of perpetrators most responsible leading to impunity gap.
2. There is no compelling evidence of threat to international peace and security as claimed by Mr. Kenyatta and Mr. Ruto package as terror threat. Such threat claims are only being used as negotiating leverage tools to escape accountability.
3. The Court and the UN Security Council must uphold the principle of equality before the law enshrined both in the Rome Statute and other applicable sources of law and as such, should not interfere with judicial proceedings.
4. The Court has sufficiently bent backwards to accommodate Mr. Kenyatta and Mr. Rutoâ€™s interests. First, the Court allowed them to defend themselves while not being detained. Secondly, the Court has set trial proceedingsâ€™ schedule ensuring that at no any time are they both in the Court at the same time. The court extended this unique magnanimity to the duo.
5. The two accused persons are being prosecuted for individual criminal responsibility and not as state officials. Their claims of official capacity fails to appreciate Articles 2(6) and 143(4) of the Constitution and contradicts clear provisions in the Rome Statute, notably Article 63(1) concerning the accusedâ€™s presence at trial and Article 27 concerning the irrelevance of official capacity and the obligation to treat all persons equally. They are asking the United Nations Security Council and the Court, as is the practice in Kenya, to â€˜seek way of caressing big fishâ€™.
6. The Appeals Chamber of the Special Court for Sierra Leone and Pre-Trial Chamber 1 of the ICC have already set precedent principle that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.
7. There has been serious tampering and/or attempts at interfering with witnesses as highlighted by the Office of the Prosecutor. Any delay or bending of the rules would only see this heinous tampering escalate.
8. Finally, UNSC and ICC must stand firmly with the victimsâ€™ rights to obtain justice. Victims continue to suffer in deplorable conditions with little or no governmentâ€™s attention to guarantee them of their right to reparatory and retributive justice.
Ndungâ€™u Wainaina is the Executive Director of International Center for Policy and Conflictâ€™s (ICPC)