ICC: Lessons learned from the Kenyatta Case of 2011

The Internal Investigation of the botched International Criminal Court (ICC) case of the ‘Kenyatta Case – The Prosecutor v. Uhuru Muigai Kenyatta – FORMERLY – The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11’, which the investigation started in Kenya in October 2010 and failure to produce anything binding or to justify the charges against them. So the charges was dropped by 2013 and 2014. While the whole case was terminated by March 2015.

Now the ICC has suddenly dropped an statement into their internal investigation into why it ended like this. Even if they have the warning, of if any of the judges get new evidence on the case. They might re-open it. However, what this states is very serious and the acts done to interfere in the investigation. Says also a lot, also about the shortfall of the jurisdiction and help from the government of Kenya. Which isn’t weird, as the state was investigating the President and allies of him. They don’t want any issues with an foreign court. That is all natural in the scheme of things.

Just look here:

“The prosecutorial process in the Kenya cases, the experts found, was hampered by deadlines set by the first Prosecutor that were based on considerations other than what they considered to be sound prosecutorial practice. In their view, the effectiveness of the investigations and prosecutions was significantly undermined by a “decision over assessment” tactic respecting cases and a target-based – as opposed to evidence-based – approach to investigation and charging. This, coupled with other problems, meant that the prosecutions were burdened with weak cases, relying on one or only a small number of insider witnesses – whose evidence could not be independently verified by the OTP – to establish essential elements of the case” (ICC, 26.11.2019).

“The key point concerning the Government of Kenya was the OTP’s delay in seeking the assistance of the Trial Chamber to compel cooperation, resulting in part from the contradictory approaches advocated by JCCD and PD (that is, continue to try to persuade the authorities to cooperate versus applying to the Trial Chamber for a finding of non-cooperation against the Government, respectively). This lesson has been taken on board. The OTP also has a range of strategies to secure cooperation from States Parties and situation countries, and these are still evolving” (ICC, 26.11.2019).

“The investigations were further undermined by the decision to delay in-country investigations, which did not take place until after the CoC hearings. Unfortunately, after those hearings, investigating in Kenya became much more difficult: support for the ICC among Kenyans had been eroded by a concerted campaign of negative propaganda; OTP personnel were followed, putting them and anyone they contacted at risk; the witness interference orchestrated by the suspects/accused became even more pervasive; and the Government of Kenya (GoK) became even less willing to co-operate, if not actively interfering with OTP operations and witness security” (ICC, 26.11.2019).

“As noted above, the GoK did not support the OTP investigative activities, instead it either allowed interference with witnesses inside and outside of Kenya and with OTP activities in Kenya, including surveillance of OTP investigators, and/or may have been directly involved in such interference. It refused Requests for Assistance (RFAs) thereby hampering the OTP’s ability to access potential evidence, or imposed such conditions or access as to, in reality, make that access so cumbersome as to be unworkable” (ICC, 26.11.2019).

We can see the ICC started this out on the wrong premise and lost because of it. They couldn’t present well enough evidence, either because of the deadlines. Nor the way the small pockets of witnesses was silenced. This was done, as the ICC haven’t secured them or ensured their safety. This was a mismanaged approach by the ICC and the ones seeking justice on this case. The Kenyatta case was finally dropped, because the ICC and their partners hadn’t done their job, neitehr had the Government of Kenya done its either. Therefore, this one got stalled and the charges got dropped.

Like the charges against William Ruto, Joshua Arap Sang and Uhuru Kenyatta. This was done because out of the 10 witnesses supposed to be put forward, only 5 showed up. That means the prosecution and the material they could assess wasn’t substantial enough nor digging deep enough. The ICC didn’t do their work and the Kenyans was doing internal actions to ensure the ICC didn’t get a case to begin with. They silenced the witnesses and intimidated the ones who could have come forward to the ICC.

This should be a lesson for the ICC. That to quick deadlines, not enough work with the coordinated leadership of where they charging people and get the proper jurisdiction might be more important. As they couldn’t do their job, as the Kenyans was putting hampers in their way. Next time find out ways to secure the witnesses and the affidavits to collect evidence before they are afraid of testifying. Peace.

United Nations Security Council press statement on the Central African Republic (06.06.2018)

The members of the Security Council condemned in the strongest terms all attacks, provocations and incitement to violence against Mission multidimensionnelle intégrée des Nations unies pour la stabilisation en Centrafrique (MINUSCA) by armed groups and other perpetrators.

KAMPALA, Uganda, June 6, 2018 – Security Council Press Statement on Attack against Multidimensional Integrated Stabilization Mission in Central African Republic:

The members of the Security Council condemned in the strongest terms the attack on 3 June 2018 by armed elements against a patrol of the Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) in the village of Dilapoko (prefecture of Mambere-Kadei) in the west of the Central African Republic, which resulted in one Tanzanian peacekeeper killed and 7 others injured.

The members of the Security Council expressed their deepest condolences and sympathy to the family of the peacekeeper killed, and to those of the peacekeepers injured, as well as to Tanzania and to MINUSCA. They wished the injured a speedy recovery.

The members of the Security Council condemned in the strongest terms all attacks, provocations and incitement to violence against MINUSCA by armed groups and other perpetrators.

The members of the Security Council reiterated that attacks against peacekeepers may constitute war crimes and reminded all parties of their obligations under international humanitarian law.  They called on the Government of the Central African Republic to swiftly investigate this attack and bring the perpetrators to justice.

The members of the Security Council reiterated their full support for MINUSCA and expressed their deep appreciation to MINUSCA’s troop- and police-contributing countries.

The members of the Security Council reiterated their strong support for the Special Representative of the Secretary-General for the Central African Republic, Parfait Onanga-Anyanga, and for MINUSCA to assist the Central African Republic authorities and the people of the Central African Republic in their efforts to bring lasting peace and stability, as mandated by the Security Council in resolution 2387 (2017).

Central African Republic crisis ‘breaks my heart’ says senior UN aid official (29.05.2018)

The already serious humanitarian situation in Central African Republic (CAR) has worsened amid a spike in violence which threatens to overtake almost every area of the country, a top UN aid official said on Monday.

NEW YORK, United States of America, May 29, 2018 –  One in four people has been displaced, according to Najat Rochdi, UN Humanitarian Coordinator for CAR, who said that this included areas that were formerly peaceful, such as the north and central zones.

Speaking at a press conference in Geneva, Ms. Rochdi warned that severe acute malnutrition in six administrative regions is higher than 15 per cent – the emergency threshold – and infant mortality is at 18 per cent.

And amid severe funding shortages which have meant aid cut-backs, she told journalists in French: “It breaks my heart every time a child comes to me and says I’m hungry.”

Speaking later in English, she said: “Where you have kids, those little girls and little boys coming to you and looking at you and telling, ‘I’m hungry, I’m starving,’ it’s horrible, really horrible. Unfortunately the situation has worsened because we had in one year’s time an increase of 70 per cent of the internally displaced people. Meaning more children, more little girls and more little boys, meaning also that it’s a whole generation that is sacrificed because they are not going to school.”

She said it was very important to keep providing them with humanitarian assistance, which meant going beyond food distribution, beyond the access to water, beyond the access to health. “It’s just access to hope.”

Of the more than $515 million aid requirement needed in CAR for 1.9 million people, less than 20 per cent has been provided so far this year.

Fighting between the mostly Christian anti-Balaka militia and the mainly Muslim Séléka rebel coalition has plunged the CAR into civil conflict since 2012. A peace agreement was reached in January 2013, but rebels seized the capital, Bangui, in March of that year, forcing President François Bozizé to flee.

Concerned with the security, humanitarian, human rights and political crisis in the CAR and its regional implications, the Security Council authorized the deployment of a UN stabilization mission, known by its French acronym, MINUSCA, in 2014 with the protection of civilians as its utmost priority.

The humanitarian community distributed high-energy biscuits to 1,500 children and debilitated adults who suffered from starvation and thirst for more than 72 hours during an outbreak of violence in Mbomou Prefecture, Central African Republic in May 2017.

The country’s huge natural wealth – in the form of diamonds, gold and uranium – continues to fuel the fighting, Ms. Rochdi explained, adding that there was “absolutely no problem” in areas “where you don’t have that much to steal.”

The violence reached the capital, Bangui, at the beginning of the month after almost a year of relative stability.

In that incident, 70 people were killed in clashes between security forces and armed militia, and thousands were displaced.

Ms. Rochdi said that UN troops had to intervene after Muslims were denied healthcare access.

The town of Bambari has also seen armed groups return, despite becoming a “safe haven for all communities” since last year, the UN official added.

The militia aimed to put pressure on the government to grant them an amnesty but this would be a “disaster” for the country, Ms. Rochdi insisted, before adding that efforts to prevent impunity had been stepped up and had resulted in a Special Criminal Court, which is due to start work in CAR next week.

Some of its “first clients” would be “high-profile leaders of armed groups,” Ms. Rochdi said, adding that CAR was one of the most dangerous places on earth for humanitarians, with six people killed this year and attacks on aid workers and looting happening on a “regular” basis.

Yet despite the instability and fact that funding levels in 2017 were only 40 per cent of what was requested, she maintained that it still made a substantial difference on the ground and had helped to prepare communities to withstand future shocks too.

It meant that more than one million people had access to water, that 7,000 tonnes of humanitarian assistance were delivered and more than 60,000 children were given an education.

In addition, the aid ensured that more than 70,000 farming families received a vital seed allocation, helping them to become more self-sufficient.

More than 17,000 children from six to 59 months suffering from severe acute malnutrition were also given support.

The most important thing was that the people of CAR had some sense that they had a future, Mrs Rochdi said, adding that humanitarian assistance “is making the difference between life and death”.

Aid is also “the best way for all of us to sustain peace in CAR”, she added, since the funding gave communities hope.

Joint Communiqué of the African Union and the United Nations on the Peace Process and the Situation in Bangui (12.04.2018)

BANGUI, Central African Republic, April 12, 2018 –

Joint Communiqué of the African Union and the United Nations on the Peace Process and the Situation in Bangui:

We, representatives of the African Union and the United Nations, decided to undertake a joint visit to the Central African Republic (CAR) to express our solidarity and full support to the Central African people and for the peace process in the Central African Republic. We also share a message of complete unity and common resolve of the African Union and the United Nations.

We are pleased in this regard that our visit coincides with the first meeting in Bangui of the International Support Group for CAR since the country’s return to constitutional order. During our visit, we will have the opportunity to talk with the Central African authorities, and have also held talks with President Touadéra.

Having arrived yesterday, we are also concerned about persistent tensions in the PK5 neighbourhood of Bangui. The operations conducted by the Government and MINUSCA on 8 April were aimed at putting an end to the activities of criminal elements that endanger the lives of peaceful citizens, in a neighbourhood that is also the economic hub of Bangui.

In these difficult times, we wish to express our deepest condolences to the families of the victims and we deplore the many wounded, to whom we wish a speedy recovery.

Above all, we wish to emphasize that this operation to restore order and State authority has the sole purpose to protect the people who seek our protection against the criminal elements who oppress them. We want to make it clear that we are determined to act to protect the entire population, across the country.

We strongly deplore and condemn the attempts to instrumentalise this operation, as well as the attacks perpetrated against peacekeepers, about 20 of whom have been wounded, and one who succumbed to his wounds.

We would like to remind you that any attack against peacekeepers is a war crime. Their authors and those who support them will certainly have to answer for their crimes in court.

We also wish to express that an offer of a peaceful settlement had previously been made to the targeted groups, who rejected it.

Finally, we wish to emphasize that, in close coordination with the Government of the Central African Republic, we are ready to use all means available to the international community to create conditions for the restoration of peace in CAR. Among these means, dialogue will be our first action followed by, if necessary, the use of force.

Our joint presence here, in collaboration with the Central African Government, is intended to reaffirm our unambiguous commitment to the African Initiative for Peace and Reconciliation in CAR, which, as the United Nations Security Council has stated, represents the only way forward to exit from crisis.

To the people of Bangui, we also call for calm. We ask them not to be victim to rumours and manipulation. Your authorities are working hard with MINUSCA to restore public order and ensure the protection of all civilian populations, without distinction.

Signed,

Mr Smaïl Chergui
Peace and Security Commissioner of the African Union

Mr. Jean-Pierre Lacroix
Under-Secretary-General of the United Nations

UPDF Disengages from the Central African Republic (19.04.2017)

Note to Correspondents on the investigations into allegations ‎of sexual exploitation and abuse against peacekeepers deployed in the Central African Republic (05.12.2016)

The Office of Internal Oversight Services has concluded its investigative process on the allegations ‎of sexual exploitation and abuse against Burundian and Gabonese contingents deployed in Dekoa, Kemo prefecture, in the Central African Republic. 

These allegations referred to incidents between 2014 and 2015. OIOS has conducted joint investigations with Burundian and Gabonese national investigative officers. Investigations started in April 2016, a few days after the allegations were brought to the attention of the United Nations and lasted for more than four months. The investigators relied primarily on the testimony of possible victims and witnesses given the lack of medical, forensic or any other physical evidence. This was due to the fact that the majority of the allegations referred to incidents that took place a year or more earlier. Everyone who came forward with claims, both minors and adults, were assisted by national and international partners.

Overall, 139 possible victims were interviewed and their accounts were investigated. By means of photo array and/or other corroborating evidence a total of 41 alleged perpetrators (16 from Gabon and 25 from Burundi) were identified by 45 interviewees; eight persons were unable to identify perpetrators through photo array or other corroborating evidence but were able to describe some distinctive traits; 83 were not able to identify perpetrators or provide corroborating evidence; and three accounts were considered unreliable. A total of 25 minors asserted they had been sexually abused. A total of eight paternity claims were filed, including by six minors.

The United Nations has shared the OIOS report with both Member States, including the names of the identified alleged perpetrators and has requested for appropriate judicial actions to ensure criminal accountability.

Responsibility for further investigations lies with Burundi and Gabon. The United Nations has requested from the Burundian and Gabonese authorities that they review the OIOS findings and conduct the interviews of the alleged perpetrators who had all been rotated out from Central African Republic before the allegations surfaced. The United Nations has asked for a copy of the final national investigation reports to be transmitted urgently.
‎
The alleged perpetrators, if allegations against them are substantiated, and, if warranted, their commanding officers, will not be accepted again for deployment in peacekeeping operations.

MINUSCA has strengthened its prevention measures and reinforced its outreach among communities and peacekeepers across the country, especially in high-risk areas to improve awareness and reporting on sexual exploitation and abuse and other forms of misconduct. The Mission is also regularly monitoring conditions and behaviour of mission’s personnel and has partnered with United Nations agencies and implementing partners in Central African Republic that provide psychosocial, medical and legal assistance to victims of sexual exploitation and abuse.

The United Nations condemns, in the strongest terms, all acts of sexual exploitation and abuse committed by peacekeepers or any other UN personnel and will maintain follow up so that perpetrators of these abhorrent acts are brought to justice.

Advocacy Brief on Kenya: 15th Session of the Assembly of State Parties (ASP) to the Rome Statute of the International Criminal Court 16-24 November, 2016 (21.11.2016)

Background

At the height of the violence that gripped Kenya after the disputed 2007 elections, the Party of the National Unity and the Orange Democratic Movement, who were parties to the conflict, wrote to the International Criminal Court (ICC) seeking its intervention to stop what they called genocide. A local investigatory commission with international participation found that some actions during the post-election violence likely met the threshold of crimes against humanity and recommended the establishment of a Special Tribunal for Kenya, or in the alternative, the handover of the sealed evidence to the Prosecutor at the ICC.

Efforts to establish the Tribunal were defeated by political forces aligned to suspected perpetrators, hence triggering the handover of evidence to the ICC and the subsequent investigation. Six Kenyans were named in connection with seven crimes against humanity charges; the ICC Pre-Trial Chamber II confirmed charges against four suspects. Two suspects – Uhuru Kenyatta and William Ruto were subsequently elected President and Deputy President, respectively, before their trials could begin at the ICC. Thereafter, the Prosecutor withdrew charges against two suspects – Francis Muthaura and Kenyatta – citing witness bribery and intimidation, as well as failure by the Kenya government to cooperate with the court. The remaining case against Ruto and journalist Joshua arap Sang was terminated citing “intolerable levels of witness interference and political meddling”.

Kenyans for Peace with Truth and Justice (KPTJ) has followed closely the developments around accountability for the crimes committed during the 2007 post-election violence. Since the opening of the investigations in March 2010, we have observed certain shortcomings and challenges on the part of the Government of Kenya, the ICC, the Assembly of States Parties (ASP) and the African Union (AU). This brief seeks to focus on key issues emerging from the situation that the ICC and international justice finds itself in today, while drawing linkages from how the Kenya cases and other ICC cases were managed. KPTJ also makes recommendations on actions that require to be undertaken by the ASP, the ICC and African governments in order to address the emergent challenges.

1. Engage and Withdraw Simultaneously?

A Contradiction in the Mandate of the AU Open Ended Committee

1. The 27^th ordinary session of the African Union’s assembly in July 2016 issued a decision on the ICC[1] pursuant to a similar one from the previous session[2]. Besides praising the court’s termination of the case against Kenya’s Deputy President William Ruto, the AU outlined a five-point agenda for the Open-Ended Committee of Foreign Ministers on the ICC, which included the following:

• Engaging with the United Nations Security Council (UNSC) before the January 2017 AU Summit and before the 15^th Assembly of State Parties in November 2016.
• Maintaining the earlier decision from January 2016, to develop a comprehensive strategy to inform the actions of AU member states that are party to the Rome Statute; a strategy that includes collective withdrawal from the ICC.
• Concluding a review of the ICC’s interpretation of Article 93 of the Rome Statute regarding the compulsion of unwilling witnesses to testify, with a view to inform debate at the 15^th
• Conveying the message that AU member states object to the inclusion of language requiring the UNSC to mandate UN peace-keeping missions to enforce arrest warrants in Africa.
• Utilising the AU Mission in Brussels, Belgium, as the secretariat to the Open-ended Ministerial Committee and provision of institutional support to the African Group in The Hague, Netherlands, to ensure effective coordination of its activities.

2. The AU has since held a meeting with the UNSC in September 2016 to present pre-formulated terms developed by the Open-ended Ministerial Committee as conditions to keep African States as parties to the Rome Statute. These conditions were as follows[3]:

• Immunity under the ICC’s Rome Statute for sitting heads of state and government as well as senior officials;
• Intervention of the ICC in cases involving African states only after those cases have been submitted to the AU or AU judicial institutions; and
• Reduction in the powers of the ICC Prosecutor.

3. Recent developments have seen South Africa, Burundi and The Gambia commence processes to withdraw from the ICC; seemingly as part of actualising the intention cited in the agenda of the Open-ended Ministerial Committee. These actions expose the agenda by the AU to be disingenuous and presupposes that the deliberations within the ASP would be futile.. The wave of withdrawals occurs against a counter-wave of support for the Court by countries including Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana[4]; an indication that the strategy for mass withdrawal does not enjoy the consensus suggested by the AU decision of July 2016. These countries have suggested that concerns expressed by African states are not insurmountable and can be addressed within the framework of the ASP. Their support for the ICC underscores the fact that the obligations under the Rome Statute are State obligations and not AU obligations; as such, decisions on withdrawal will be based on national interest that cannot be assumed by the AU.

4. Furthermore, the strategy for AU member states to withdraw undermines the other outlined agenda items of engagement with the ASP, such as the review of the interpretation of Article 93 of the Rome Statute and the enforcement of arrest warrants. Such contradictory actions raise the question of whether the AU is negotiating ICC reforms in good faith.

5. In light of the foregoing, KPTJ recommends that:

• African States abandon and disregard calls for mass withdrawal from the Court and instead consolidate the member bloc to advance their concerns within the bounds of the ASP in deliberations based on good faith.
• African states should continue to publicly reaffirm their support for engaging with the ICC through the ASP and prevail on the AU to adjust its engagement strategy accordingly. We applaud the statements made by Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana.
• An ICC Liaison Office should be established at the AU headquarters in Addis Ababa to facilitate more productive and sustained communication between African States and the ICC as part of restoring a relationship that has become plagued by mistrust and misunderstandings.

1. Absence of Accountability?

Peace, Security and Stability

6. The characterisation of the ICC as undermining the peace and security of states or threatening their stability has become a recurring theme by those advocating disengagement or withdrawal from the ICC. In its notice of withdrawal, South Africa claims that its aspirations for the peaceful resolution of conflicts were being hindered by its obligations under the Rome Statute[5] to arrest Sudanese President Omar Al Bashir when he attended the June 2015 AU Summit in Johannesburg. Kenyan government officials have also previously described the cases against Kenyatta and Ruto as an existential threat to peace and stability.
7. A closer scrutiny of this assertion in the face of ongoing conflict situations suggests the contrary. The absence of accountability processes does not necessarily facilitate peaceful resolution of conflicts; the South Sudan and Burundi conflicts instead point to protagonists willing to escalate violence, even in the context of peace negotiations. Burundi and The Gambia have commenced processes to withdraw from the ICC at a time when their respective governments stand accused of acts of repression and mass human rights violations. Rather than advance the cause for peace, the clamour for withdrawal from the ICC is playing into the hands of those wary of the prospects of accountability in the aftermath of conflict. Even more concerning is an apparent trend of rising post-election violence, such as that witnessed in Kenya previously and in Gabon currently, or violence stemming from efforts to instal third-term incumbencies in the Democratic Republic of Congo (DRC) and Burundi. Such trends are bound to persist in the absence of mechanisms for accountability, of which the ICC is a critical component.
8. The assertion that the African Court of Justice and Human Rights (African Court) and its proposed expanded criminal jurisdiction through the Malabo Protocol would fill in any void created by a mass withdrawal from the ICC is erroneous. The African Court is a distant prospect for addressing the impunity gap: it is far from being operational. Since 2013, only five states namely Benin, Kenya, Congo, Guinea Bissau and Mauritania have signed but not ratified the Malabo Protocol, which requires the ratification of 15 states to begin operations. Kenya is the only state thus far that has made a financial pledge of USD 1 million to operationalise the court — a far cry from the resources required for a court of broad jurisdiction consisting of a mandate on human rights as well as international law and interstate disputes. It has previously been estimated that a singular international criminal trial costs USD 20 million to undertake. In addition, the protocol contains contentious provisions that undermine its viability as an alternative platform for international crimes, the most notable being the clause of immunity for sitting heads of state and senior government officials. As a testament to the inability of the African Court to be an immediate replacement of the ICC as desired by some, even South Africa through its Justice Minister has indicated that it will ask for a review of the Malabo Protocol to address contentious issues. Furthermore, limited progress has been made towards establishing national mechanisms that can sufficiently undertake the obligation of accountability for international crimes.
9. KPTJ recognises the pursuit of justice in conflict and post-conflict settings as an essential pillar of rebuilding democracies and restoring rule of law. These are the pathways to lasting peace, security and stability. Rather than push to void international justice mechanisms after the conflict to facilitate mediation, we recommend that:

• African states fully implement and consistently apply already established norms on democracy, peace and security as a preventative measure to conflict including: the African Charter on Human and Peoples’ Rights; the African Charter on Democracy, Elections and Governance and; the African Governance Architecture.
• African states must critically reflect on and address the issues of the African Court’s capacity, accessibility, legal standards outlined for crimes under international law and expunge provisions conferring immunity on sitting Heads of State and senior government officials. This process must not be rushed or predicated on a manufactured crisis precipitated by a strategy of mass withdrawal from the ICC.
• African states should establish robust and credible national mechanisms to address the accountability question at first instance and in complementarity with regional and international mechanisms. They must also broaden their policy considerations to include comprehensive reparation programmes for victims of international crimes.
• Disparity between State Obligations and Reality?

A look at State Cooperation

10. The Kenya and Sudan cases have exposed the frailties within the Rome Statute framework in as far as state cooperation is concerned. These cases have laid waste to the presumption that States will willingly engage with the court in the face of cases seeking to prosecute sitting heads of state, their deputies or powerful elites in close proximity to power. State cooperation has only demonstrably worked in instances where the target for prosecution is a vanquished foe of conflict as seen in the cases of Uganda and Cote d’Ivoire, that are fast advancing a notion of “victor’s justice”. This challenge is further compounded by the fact that the final recourse for addressing the lack of state cooperation rests with the ASP. The ASP being a political organ of the Rome Statute is influenced by political rather than purely legal considerations in making its decisions, which makes the issue of resolving the non-cooperation of states problematic. A final challenge to state cooperation is the failure of the United States, China and Russia to ratify the Rome Statute while also being members of the UNSC with the power of referral of matters to the court. This has created the notion of double standards within the international justice system and emboldened other states to disregard cooperation with the court.
11. KPTJ calls on the members of the UNSC who have not ratified the Rome Statute to display leadership on State cooperation with the court by first ratifying the Statute and utilising its discretion on referral and deferral in a manner that adheres to the objectives of the Statute. We further wish to reiterate that state cooperation must denote effective cooperation that facilitates the mandates of the respective organs of the court and not feigned cooperation which creates the perception of facilitating the court but in fact consists of using procedural and technical obstacles to undermine the court. We call on the ASP to adopt a consistent and objective legal standard in the assessment of state cooperation.
12. Are there lessons to be learned?

Taking stock of the experience in the Kenya cases

12. The Kenya cases and the manner of their termination carry critical lessons for consideration to inform future actions by the court and the content of reforms within the strategic plans of its respective organs. The Office of the Prosecutor (OTP) as well as the bench on various occasions decried the instances of witness tampering and intimidation as well as non-cooperation by the state in responding to the OTP requests for information and a failure to execute ICC warrants of arrest with respect to three Kenyans suspected of witness tampering. This in fact has led to a finding of non-compliance against Kenya and led to its referral to the ASP under article 87(7) of the Rome Statute. In the midst of all this, was an unprecedented and disruptive diplomatic effort that deliberately exerted political pressure on the court with a view to influencing the outcome of the Kenya cases. It is arguable that these diplomacy efforts yielded the concession of excusing President Kenyatta and Deputy President Ruto from continuous presence at their trial and that the current wave of withdrawals from the ICC on the basis of an apparent bias by the court against Africans are a fallout from these diplomatic efforts. The capitulations of the cases have also pointed to significant flaws in the investigative and prosecutorial approaches that informed the development of the cases and must lead to some introspection from the relevant mechanisms. The fact that the Trust Fund for Victims is yet to commence operations in Kenya cannot go without mention.
13. KPTJ urges all the organs of the court to reflect on these experiences and take due cognisance of the following lessons and recommendations:

• The ICC, particularly the ASP, should do more to ensure that it does not allow political statements to interfere with the judicial independence of the Court.
• The ICC should ensure that it takes steps to respond to messages of a political nature and correct inaccurate statements in a timely manner. In addition, it should ensure that such key messages reach the right audiences, including victims and affected communities.
• The Court should continue to build its relationship with African States that openly support the mandate of the ICC; in addition, the ICC should do more to improve its relationship with, and image at, the AU.
• The Trust Fund for Victims should commence operations in Kenya, as victims have received little to no assistance from the Kenyan government.
• The Prosecutor should carefully consider when to request ‘summons to appear’ as opposed to ‘warrants of arrest’ and take into account the individual circumstances of each accused person in doing so, particularly their potential to intimidate witnesses and interfere with evidence.
• Swift action should be taken by the Prosecutor and the Court in instances of non-cooperation by States Parties. Any instances of non-cooperation should be resolved as speedily as possible, in such a manner that the outcome of proceedings on non-cooperation can be applied to strengthen an ongoing case and not be delayed to the point that the outcome is only of academic significance.
• The Prosecutor should continue to carry out a review of its investigative strategies and methods in order to improve its chances of success at trial.
• The Prosecution should ensure that its staff are able to spend as much time as possible on better understanding the context and nuances of a given situation country.

1. Pursuit of reform without prejudice?

UN Reform vs ICC Reform

14. The unique role played by UNSC in referral and deferral of cases before the ICC means that the debates on reforming the court and reforming the UN and in particular the UNSC have inevitably intersected. We have witnessed both undertones and overt accusations of imperialism and undue influence directed at the court on account of cases on Africa referred to it by the UNSC (Libya and Sudan). Arguments made to amend the Rome Statute to confer immunity for sitting heads of state and senior government officials are laced with grievance against the UNSC permanent five members possessing a de facto immunity from prosecution under the ICC on account of their veto power. The end result is a misdirected effort to amend the Rome Statute or in the extreme withdraw from the ICC on the basis of perceived excesses that are better addressed by engaging the broader debate of UN reforms.

15. While KPTJ acknowledges the slanted relationship of the UNSC with the court and supports a robust conversation on its reforms, we call on states not to misdirect the agenda of reforming the UNSC into discussions on improving the functions of the court and occasion amendments to the Rome statute that sacrifice the future of the court as part of a bargaining process on UNSC reforms. We call on African states in particular, to distinguish the broader question of UN reforms as enshrined in the “Ezulwini Consensus” from the question of reforming the Rome Statute and reflecting on the performance of the court. We call upon African member states to the Rome Statute not to sacrifice the promise of justice for victims of atrocity crimes at the altar of grievance against the unequal power relations represented by the UN Security Council.

end/kptj/16.06.2016

——–

About KPTJ:

This brief was prepared by Kenyans for Peace with Truth and Justice (KPTJ), a coalition of Kenyan citizens and over 30 organisations working in the human rights, governance and legal fields that came together during the crisis over the disputed results of the 2007 presidential election to seek truth and accountability for the elections and the widespread violence that followed; and who continue to work closely with the victims of that period. It is a brief update on the situation in Kenya as pertains to pursuing accountability for the crimes against humanity committed during the 2007-2008 Post-Election Violence as well as its adherence to its obligations under the Rome Statute.

[1] Assembly/AU/Dec.616 (XXVII)

[2] Assembly/AU/Dec.590(XXVI)

[3] Press Release: “UN/African Union: Reject ICC withdrawal”. Available here: http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/552-un-african-union-reject-icc-withdrawal.html

[4] Article: “Which African states slammed Burundi, South Africa and Gambia’s withdrawal from ICC?” Available here: http://www.ibtimes.co.uk/which-african-states-slammed-burundi-south-africa-gambias-withdrawal-icc-1589711

[5] https://www.justsecurity.org/wp-content/uploads/2016/10/South-Africa-Instrument-of-Withdrawal-International-Criminal-Court.jpg

Preliminary Statement regarding the British Referendum to leave the European Union (05.07.2016)

The Board of Directors (the “Board” or the “Directors”) of Global Invacom Group Limited (the “Company”, and together with its subsidiaries, the “Group”) refers to the results of the vote on 23 June 2016 in the United Kingdom (“UK”) on the referendum for Britain to leave the European Union (“EU”).

The UK’s impending departure from the EU – with negotiations expected to commence in the fourth quarter of the financial year ending 31 December 2016 (“Q4 FY2016”) as at the time of this announcement – has resulted in economic uncertainty. However, the Directors believe that the immediate impact on the Group’s satellite communications (“Sat Comms”) will not be significant.

The weakening of the British pound following the results of the vote is expected to have a favourable foreign exchange impact on the Group’s financial performance in the near to medium-term.  The Group incurs a significant portion of its operational and research and development costs denominated in sterling for activities carried out of its UK facilities, and buys some raw materials such as steel and components in United States (“US”) Dollars.  However, as almost all its revenue for Sat Comms equipment is denominated in US Dollars, the weakening of the pound against the dollar will offer some foreign exchange advantages in the near term.

Depending on the outcome of trade negotiations between the UK and the EU following the formal exit, the Group may consider establishing a logistics hub in an EU country in order to continue tariff-free transactions via a possible UK-EU Free Trade Agreement to be negotiated.

While the UK may experience an economic slowdown following the referendum, historical trends have shown that consumption of satellite-streamed content and data increases during such recessions.  Such a development, with more audiences staying home for longer periods of time consuming media entertainment, could benefit its major UK client BSkyB.  The Group supplies BSkyB with satellite dishes and circuit boards for set top boxes.

The Group will continue to assess the implications following the outcome of the British referendum and will keep shareholders informed of any material developments that could impact the business.

 

 

BY ORDER OF THE BOARD

 

 

Anthony Brian Taylor

Executive Chairman

 

5 July 2016

McDonald welcomes statement that Taoiseach will establish National Forum to discuss Brexit implications for Ireland (02.07.2016)

Sinn Féin Deputy Leader Mary Lou McDonald TD has welcomed a statement today from Fine Gael Minister of State for European Affairs Daragh Murphy TD, that the Taoiseach Enda Kenny is to establish a national forum to discuss the aftermath of the Brexit referendum and its implications for Ireland, North and South.

Mary Lou McDonald said:

“I welcome the statement today from the Minister of State for European Affairs F Daragh Murphy TD, that the Taoiseach Enda Kenny is to establish a national forum to discuss the aftermath of the Brexit referendum and its implications for Ireland, North and South”.

Sinn Féin’s Party Leader Gerry Adams TD wrote to the Taoiseach on Friday asking him to consider establishing a Forum to discuss the future for the people of this island – North and South – and the European Union following the Brexit vote, and that Mr Kenny meet with him and other political leaders to discuss the proposal.

“I believe any such forum should aim to have island-wide participation and involve the Assembly parties, the Oireachtas, the European Parliament and civic society”.

“The vote of the clear majority of citizens in the North who want to remain in the EU must be respected and defended”.

“The Remain vote brought together unionists, nationalists, republicans and others in common cause on the same platform”.

“Those who campaigned for a Leave vote should also be invited.

“There is an imperative on all of those who are concerned about the consequences of the Brexit vote to work together in the time ahead”.

“A Forum, similar to the New Ireland Forum and the Forum for Peace and Reconciliation, should be open to all political parties on the island”.

“It would have the clear objective of discussing the implications of Brexit and producing papers on strategies and policies that might assist in coordinating efforts in the time ahead.”

H.E. Uhuru Kenyatta Statement on ICC verdict on the Ruto and Sang Case (05.04.2016).

Earlier today, Trial Chamber V (a) of the International Criminal Court acquitted my Deputy President, Honourable William Ruto, and Mr. Joshua Arap Sang. I welcome the aforementioned decision, which reaffirms my strong conviction from the beginning about the innocence of my Deputy President. From the start of this case, I have believed that this case was ill-conceived and never grounded on the proper examination of our experience of 2007/2008 as a nation.

Over the last six years, My Deputy President, together with a number of other Kenyans, including myself, have endured a painful journey with the ICC. As individuals and as a country, we have cooperated fully with the court, and my Deputy has, at the same time, also borne the heavy responsibilities of leadership, while attending the hearing at the Hague. Today, he has been vindicated.

This decision brings to a close what has been a nightmare for my nation. With the conclusion of this case at the ICC, our country is fully back on focus to enhance our efforts towards nation building, promotion peace and security. For my Deputy and I, this focuses us fully on the affairs of running the State, a mandate given to us by the people of Kenya.

As we welcome this decision, Kenya together with like-minded nations, will remain seized of the efforts geared towards the pursuit of justice and equitable participation in the international justice system. As a nation, we recognize our duty to, and respect for, international law and institutions. We will therefore continue to pursue ways to improve the delivery of international justice, uphold the rule of law and promote a just and fair global order.

To my Fellow Compatriots,
Each and every Kenyan was touched by the tragedy that befell our nation in 2007-2008. Each and every victim of this unfortunate happening matters. Not one of them has been forgotten. Their suffering demanded of us as leadership to seek reconciliation. My Deputy and I campaigned and were elected on a platform to unite and reconcile our motherland. When you entrusted the leadership of the country to our administration, you made us responsible for the healing and reconciliation of our people.

Kenya has come a long way since the dark days of 2008. We have made peace. We have given ourselves a new constitution and a new political order. We have resettled and compensated many victims, and continue to respond to the outcomes of that unfortunate period of our history.

I invite each and every Kenya to double our efforts in building our nation.
When the ICC case against me was dropped, I told Kenyans that I could not celebrate until all the cases had been terminated.

So, today, I call upon all Kenyans of goodwill to join us at the Afraha Stadium, Nakuru, on Saturday 16th April 2016, for a thanksgiving service. This will be an opportunity for prayers for healing, reconciliation and unity of Kenya as we push on the path of inclusive prosperity for all.

Thank you. God bless Kenya.