KPTJ response to GOK letter to UNSC 4th March 2011

1. Your Excellency,
RE: RESPONSE TO THE LETTER FROM A SECTION OF THE
GOVERNMENT OF KENYA TO THE PRESIDENT OF THE UNITED
NATIONS SECURITY COUNCIL SEEKING SUPPORT FOR KENYA’S
REQUEST FOR DEFERRAL FROM THE ICC
On the 4th of March the Permanent Mission of the Republic of Kenya
presented to the United Nations President of the Security Council a letter
requesting an article 16 (of the Rome statute) deferral on the
International Criminal Court (ICC) Kenyan case.
The letter asserts that the naming of the six individuals allegedly bearing
the 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 climate
The letter further asserts that the ongoing ICC process has the potential
to:
 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 is
in relation to and should be read in conjunction with the attached letter
dated 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 failed
presidential election which has since been monitoring the implementation of the mediation agreement.

2. Background:
The ICC intervened in the Kenyan situation as a result of the actions of
the African Union-led Panel of Eminent African Personalities under the
leadership 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 the
violence. The duly established Commission of Inquiry into Post-election
Violence (CIPEV) led by a Kenyan judge, Mr. Justice Philip Waki,
required that a Special Tribunal be set up to deal with perpetrators of the
violence, failing which an envelope with a list of the suspected main
perpetrators of the violence was to be handed over to the International
Criminal Court by Mr. Annan.
Despite Mr. Annan’s appeals and extensions of the time limit, Kenyan
politicians repeatedly and emphatically rejected establishment of the
Tribunal and thus decided against implementing the principle of
complementarity as laid out in the Rome statute
Mr. Annan then handed over the envelope to the Prosecutor Louis
Moreno Ocampo, who eventually received permission to open an
investigation into the Kenyan situation and, on December 15 th 2010,
announced the names of the six suspects against whom he sought
summonses to appear, which have now been issued. This process has
thus been an African and Kenyan-led process.
KPTJ Position
Kenyans for Peace with Truth and Justice strongly object to the
arguments raised in the above mentioned letter; they are erroneous and
in 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. 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 violence
5. 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.2
7. 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. Until
2
The PNU section of the governments initial approach was to seek to withdraw from the
Rome statute then as is indicated by the Ambassador in his letter, their next strategy
was to seek support for deferral of the Kenyan case under Article 16 of the Rome
Statute. After the issuance of the summons by the Pre-Trial Chamber II of the Court
they plan to challenge the admissibility of the cases and jurisdiction of the court under
Article 19 of the Rome Statute.

4. 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 Forward
We respectfully request the United Nations Security Council through
your 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 Justice
P.O. Box 18157 – 00100 GPO
Nairobi, Kenya
admin@africog.org
www.africog.org