Kptj response to gok letter to unsc 4th march 2011
Your Excellency,RE: RESPONSE TO THE LETTER FROM A SECTION OF THEGOVERNMENT OF KENYA TO THE PRESIDENT OF THE UNITEDNATIONS SECURITY COUNCIL SEEKING SUPPORT FOR KENYA’SREQUEST FOR DEFERRAL FROM THE ICCOn the 4th of March the Permanent Mission of the Republic of Kenyapresented to the United Nations President of the Security Council a letterrequesting an article 16 (of the Rome statute) deferral on theInternational Criminal Court (ICC) Kenyan case.The letter asserts that the naming of the six individuals allegedly bearingthe greatest responsibility for the PEV by the ICC prosecutor Is prejudicial and premature Has slowed down the implementation of the new constitution, Has halted the reform process Has interfered with the delicate political climateThe letter further asserts that the ongoing ICC process has the potentialto: Reignite violence, Cause a breakdown of law and order Result in loss of human life in Kenya Cause disruption of economic, peace and security activities.The following statement by Kenyans for Peace with Truth and Justice 1 isin relation to and should be read in conjunction with the attached letterdated 4th March 2011.1 KPTJ is a coalition of over 30 Kenyan and East African legal, human rights, and governance organizations,together with ordinary Kenyans and friends of Kenya, convened in the immediate aftermath of 2007’s failedpresidential election which has since been monitoring the implementation of the mediation agreement.
Background:The ICC intervened in the Kenyan situation as a result of the actions ofthe African Union-led Panel of Eminent African Personalities under theleadership of Kofi Annan.The National Accord and Reconciliation Act, signed by the two Principals,Hon. Mwai Kibaki and the Hon Raila Odinga, which ended the post-election violence in Kenya, prescribed a process of inquiry into theviolence. The duly established Commission of Inquiry into Post-electionViolence (CIPEV) led by a Kenyan judge, Mr. Justice Philip Waki,required that a Special Tribunal be set up to deal with perpetrators of theviolence, failing which an envelope with a list of the suspected mainperpetrators of the violence was to be handed over to the InternationalCriminal Court by Mr. Annan.Despite Mr. Annan’s appeals and extensions of the time limit, Kenyanpoliticians repeatedly and emphatically rejected establishment of theTribunal and thus decided against implementing the principle ofcomplementarity as laid out in the Rome statuteMr. Annan then handed over the envelope to the Prosecutor LouisMoreno Ocampo, who eventually received permission to open aninvestigation into the Kenyan situation and, on December 15 th 2010,announced the names of the six suspects against whom he soughtsummonses to appear, which have now been issued. This process hasthus been an African and Kenyan-led process.KPTJ PositionKenyans for Peace with Truth and Justice strongly object to thearguments raised in the above mentioned letter; they are erroneous andin manifestly bad faith for the following reasons:1. The National Accord and Reconciliation Act that established the coalition government necessitates consultation between the two Principals. The position advanced in the letter is not one held by the whole Kenyan government, but by the faction led by the President, the Party of National Unity (PNU). The ambassador therefore does not have the mandate to present this letter to the UNSC without the consultation and support of the whole government.2. The ICC process was triggered by the failure of the government to establish a local tribunal to prosecute crimes committed during the post election violence.
3. KPTJ believes that the naming of the six individuals by the ICC Prosecutor was not prejudicial but in fact in the best interests of the Kenyan population and in an effort to protect actual or perceived witnesses who, prior to the naming of suspects, were in very real danger of interference persons who believed they may be implicated in the Prosecutor’s case.4. The letter asserts that the ongoing ICC process has the potential risk to reignite violence. There is no current or imminent indication of a breakdown of peace, law, order or generalised violence in Kenya to justify a deferral of the ICC case. On the contrary failure to secure accountability will surely lead to strengthening of impunity and repeat of violence5. KPTJ asserts that if indeed violence should be re-ignited in Kenya, it will be as the result of deliberate actions to create a self-fulfilling prophecy by those who are intent on evading accountability.6. KPTJ views the pursuit of ever-shifting and contradictory strategies by the PNU section of the government in the attempt to escape accountability through the ICC as an indication of growing desperation.27. Reform of the criminal justice system is at an extremely early and tenuous stage.8. While a local justice mechanism will heavily rely on a reformed Judiciary, judicial reforms are only just getting underway. The appointment of the new Chief Justice (CJ) has got off to a most controversial start, resulting in the post of the chief justice being vacant since the prior Chief Justice’s exit on the 27 th of February 2011.9. There is an inherent conflict in the currently unreformed police force being used to investigate post-election violence as the CIPEV, along with the ICC Prosecutor, identified the security forces and police as major perpetrators of the violence, including sexual violence. Until2 The PNU section of the governments initial approach was to seek to withdraw from theRome statute then as is indicated by the Ambassador in his letter, their next strategywas to seek support for deferral of the Kenyan case under Article 16 of the RomeStatute. After the issuance of the summons by the Pre-Trial Chamber II of the Courtthey plan to challenge the admissibility of the cases and jurisdiction of the court underArticle 19 of the Rome Statute.
significant progress is achieved on police reforms, public confidence in any investigation carried by the police will be lacking.10. The majority of Kenyans, as opinion polls and surveys have consistently shown, support the intervention of the ICC. In November 2010, 78% of Kenyans supported the ICC investigation. Moreover, there is growing mobilisation of vital national grassroots and diaspora movements in support of peace and participation in the ICC process. This is despite the naming of the persons seen to be most responsible for the post election violence by the ICC prosecutor and the issuance of summonses to appear for the same. Therefore there is no imminent threat to peace and security from the general public.Way ForwardWe respectfully request the United Nations Security Council throughyour Excellency to:a) Reject the application by the government to defer the ICC Cases under Article 16 of the Rome Statute since the grounds for such a deferral do not exist.b) Support the establishment of a credible local accountability process for the crimes, not as an alternative to the ICC process but rather as imperative to bridging the impunity gap between the lower, mid level perpetrators and those who bear the greatest responsibility for Post Election Violence. However this will necessitate significant progress on reforms of the criminal justice system.c) Remind the Government of Kenya of its obligations under the Rome Statute, international law, as well as its Constitution to undertake prompt, thorough, independent and impartial investigations of human rights violations to ensure that those suspected of committing serious crimes are prosecuted.Please accept the assurances of our highest consideration.For Kenyans for Peace with Truth and JusticeP.O. Box 18157 – 00100 GPONairobi, Kenyaadmin@africog.orgwww.africog.org