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Foreign Affairs Cabinet secretary Amina
Mohamed is in New York in a bid to push for
deferral of Kenya cases at the International
Criminal Court through the United Nations
Security Council.
Ms Amina Mohamed arrived in the US city on
Sunday to join a high level delegation of the
African Union Executive Council which is
seeking to meet members of the UN Security
Council over Kenya’s ICC deferral request.
Ethiopia’s Foreign minister Tedros Adhanom
Ghebreyesus, chairman of the AU’s Executive
Council, is leading about half a dozen top AU
officials to put the case for deferral to Security
Council members.
A UN diplomat who spoke to Daily Nation on
condition of anonymity said the AU delegation
is expected to meet individually with most
council members to lobby for Kenya’s case.
INFORMAL SESSION
“So far the Security Council members are
listening and they may hold an informal
session with the entire council on Oct 31,” said
the diplomat.
Last Tuesday, the African Union secretariat
wrote a letter to the United Nations Security
Council seeking the deferral of the
international criminal cases facing President
Uhuru Kenyatta and his deputy, William Ruto.
The AU urged the Security Council to
“positively” consider their request and
expressed regret that previous requests “were
not acted upon.”
And in another letter from the Kenyan Mission
to the United Nations, Ambassador Macharia
Kamau asked the Security Council to take into
account threats to peace or an act of
aggression “likely to transpire in light of the
prevailing and continuing terrorist threat
existing in the Horn of and eastern Africa.”
He argued that there was need to prevent “an
aggravation to peace and security in Kenya
and neighbouring countries.”
The envoy said a delay would provide time for
Kenya to consult the International Criminal
Court “to consider how best to respond to the
threat to international peace and security in
the context of the Kenya situation.”
“Kenya therefore seeks action of the United
Nations Security Council to prevent the
aggravation of the threat, breach of peace or
act of aggression that the terrorism menace
poses to national, regional, continental and
international peace and security,” Kamau said.
STRONGLY WORDED LETTER
Last May, Mr Kamau wrote a strongly worded
letter to the Security Council which sought the
termination of the Kenyan cases, citing
possible violence in Kenya if the proceedings
in The Hague were not halted.
But when the Kenyan deferral request was
discussed by the 15 council members in, eight
were opposed and seven were more
sympathetic.
Amb Amina Mohamed argues that following
the move by members of the African Union to
back Kenya in its quest, The Security Council
should see the gravity of the matter and grant
the East African nation its request.
“Kenya requires her leader to be in full control
of the country in her fight against terror,
especially in the wake of the Westgate mall
attack in which at least 67 people were killed
by Islamic extremists,” she said in a recent
media statement.
However, some diplomats within the United
Nations circles have expressed pessimism
over whether there will be a major shift in the
Security Council.
“The council previously rejected this bid for
impunity because there’s no basis to stop the
case,” Richard Dicker, director of international
justice at Human Rights Watch, said in a
media briefing in New York on Monday.
“For the victims, for the witnesses, and for the
dangerous precedent that could be sent, we
expect the council to again reject Kenya’s
request for a deferral.”
The Security Council has fifteen members and
for Kenya to get a deferral, the UN body would
have to pass a resolution which would require
a minimum of nine “yes” votes and no veto by
a permanent member — the US, Russia, China,
Britain and France.
The move by the African Union member States
to seek deferral as an entity has no
precedence and is therefore being watched
keenly by different stake holders and political
scientists.
The Rome Statute that established the
International Criminal Court mandates the UN
Security Council to refer can refer cases to the
court, and, if deemed necessary, to defer an
investigation or a prosecution for up to a year.

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