KENYA'S NGOs ALMOST DEFEATED UHURU IN HAGUE

This article appeared in The Star newspaper on 30th November 2013, following the 12th ICC Assembly of State Parties Meeting in The Hague.

KENYA'S NGOs ALMOST DEFEATED UHURU IN HAGUE

PUBLIC squabbles between civil society and the government delegation at the just concluded Assembly of State Parties at The Hague almost scuttled efforts to rescue President Uhuru Kenyatta from his ICC trial.

NGOs stormed virtually all ASP events angering government officials.

Foreign Affairs Cabinet Secretary Amina Mohammed said at a briefing last week that Kenyans at the ASP spoke as if they came from different countries.

On Monday the government team walked out of a debate after a bad-tempered exchange over the victims of post election violence and Kenya's proposed amendments.

The primary goal of the Kenyan delegation was to get immunity for sitting heads of state at the assembly that ended on Thursday. This was not achieved but concessions were reached on changing the ICC rules to allow the use of video link and for important persons to apply to the court for excusal to discharge their national responsibilities.

A top Kenyan official said that civil society groups had attempted to counter all government initiatives at the ten day assembly at The World Forum Convention Center.

“These NGOs have really hit us below the belt this time. We don’t know how they organized themselves in such a way and I think they must have been well funded to do what they are doing. They are surely evil societies and not civil societies,” said the official.

The NGOs, operating under the Coalition for the ICC, were present at almost every panel discussion.
If there was a government press briefing, it would be followed by civil society leaders responding.
George Kegoro of ICJ Kenya, lawyer Njonjo Mue, Gladwel Otieno of Africog, Betty Okero of CSON and George Muraro from the Kenya Human Rights Commission led the civil society representatives. They freely offered detailed information to delegates from all over the world.

Ugandan activist David Matsanga, a former spokesman for President Robert Mugabe and Joseph Kony, was doing PR for the government at the assembly. He was very angry with the NGOs.
“They have made us look so bad and I feel like we have lost things here. These guys are all over talking the opposite of what we are saying. Unless we counter them we will go away with nothing, “said Matsanga mid-week.

The first surprise for the government came during the special segment discussions on Kenya and African Union proposed amendment at the start of the ASP ten days ago.

ASP President Tiina Intelmann allowed member states, observers, and NGO representatives to give their views on the proposed amendments to Articles 27 and 134 of the Rome Statute to protect sitting leaders from trial at the ICC.

Lawyer Njonjo Mue jumped up even before Amina Mohammed was given the floor to state the Kenyan position as leader of the government delegation.

He was applauded by delegates after he eloquently stated why they were opposing the amendments.
“Kenya has suffered cycles of violence over the years and nothing has been done to end the cycle while victims of these episodes of violence continue to suffer. To our leaders, immunity will mean impunity and the international community should not be duped to support those who want to reverse gains made in fighting impunity through the Rome Statute,” he said.

Mohammed, who sat at the Kenya table in the middle row of the conference hall, looked back at Mue who sat in the area reserved for NGOs and observers.

“If the Kenyan people voted the constitution and rejected such immunity, we see no reason why the international community should allow for the same through the proposed amendments,” Njonjo said.
Muraro then jumped up to declare, “We should be talking on how the Rome Statute should be used appropriately to take care of the plight of the victims and not how best we can protect those who commit serious offenses.”

Amina retorted that Kenya and the African Union deserved to be heard but the damage in the assembly had already been done.

She said that government had resettled displaced families and helped victims of the violence.
She said President Kenyatta had played a critical role in peace and reconciliation in Kenya and ensured security within the Great Lakes region through the fight against terrorism and piracy.
Amina hit out at the NGOs at a press conference afterwards.

“The victims are all our people. We should stop making it like some of us are more concerned with the plight of victims than us. Nobody owns them more than others. We all feel strongly about them and we need to help all of them," Amina said.

“We cannot come here to deal with our problems. We have to go back home and dialogue over these issues”, said Amina told Njonjo.

“We cannot have such conversations while abroad. We must have them at home. We should not appear like we live in different countries," said Amina.

Another confrontation took place this week when Director of Public Prosecutions Keriako Tobiko was called out of a panel debate to a different room where the NGOs were bashing the government before the international community.

International delegates were left speechless on Monday when the Kenyan team led by deputy solicitor general Muthoni Kimani stormed out of the debate at the World Hotel Bel Air after a bitter exchange with the NGOs.

A panel including Njonjo Mue had been debating the proposed immunity for sitting heads of state at the ICC.

He asked the ASP not to bow to pressure from Kenya and change the Rome Statute.
Mue said the Kenya government should not "besiege the world with demands seeking to protect individuals from standing trial over such crimes".

Muthoni Korir Singoei, legal adviser in the office of the Deputy President, put up a strong defense for the government.

"The victims have become tools to be used by NGOs and people like Njonjo for their own benefits. Njonjo has not even met any of the victims he keeps talking about," shouted an agitated Singoei.
Muthoni and her team walked out when Njonjo challenged them to state how much had been used to compensate those who lost relatives during the post-election violence.

Kenyan MPs called a press conference to demand who the NGOs were representing and who had funded them.

“We want to know why they were allowed to address the ASP which is for member states of the Rome Statute. Which state are the NGOs representing?", said MP Irungu Kangata.

MPs openly argued in the corridors with NGO leaders and other delegates had to intervene to cool down the situation.

At the end of the conference, the government and AU succeeded in getting some amendments to the ICC rules of procedures and evidence but the battle with the NGOs left many delegates confused.
“We came here to fight impunity. We have made it clear that the proposed amendments to Rome Statute will touch the core or heart of the ICC,” said Kegoro.

 

See more at: http://www.the-star.co.ke/news/article-145610/kenyas-ngos-almost-defeated-uhuru-hague

Corridors of Power.

The usually witty and evasive Attorney General Githu Muigai met his match at The Hague last weekend. On the sidelines of the ongoing ASP meeting, the AG came face to face with what his Jubilee friends call the “evil civil society” and challenged them to disclose their interest in the ICC cases and who they speak for. But one of his former students, Njonjo Mue, rose to the challenge and said he must have missed the class where the AG taught that the law should be used to help those in power to evade justice. - See more at: Corridors of Power

Curtain Comes Down at The Hague.

Today is the closing day of the ICC Assembly of State Parties meeting here in The Hague. It has been a long and gruelling two weeks. The Kenya government brought out a huge delegation led by Amb. Amina Mohammed and AG Githu Muigai and including the DPP, the Deputy Solicitor General, Kenya's Ambassador to the Netherlands and myriad officials from Nairobi, The Hague, New York, Brussels and other missions nearby. They were variously joined by MPs and supporters like David Matsanga and Moses Kuria and Spokesman in the Presidency Manoah Esipisu.

Their brief was simple, get as many concessions from the ICC for Kenyatta and Ruto as they could. Their strategy was straight forward: Aim for the sun and hope to reach the moon - demand the ridiculous and hope to get the unreasonable.

And so it began on the opening day with angry speeches made from the floor of the plenary. Then the debate on head of state immunity on Day 2 that went late into the night where Prof. Githu Muigai seemed to lose touch with reality claiming that Kenya was responsible for the security of 250 million Africans from Djibouti to DRC.

There were various side events they attended and spoke angrily, attacking the messenger because they no longer had a monopoly over the message: Who does civil society speak for? Who paid for you to be here? Why are civil society  allowed to address the ASP? At one point, during a debate on prosecuting heads of state on which I was a panellist, second tier government officials choreographed a bear knuckle frontal attack on me and when I responded to their allegations and accusations, they dramatically stormed out of the meeting leaving the international audience rather bemused.

All the while there was serious ongoing lobbying on the language of the amendments Kenya was pushing through to ensure that Uhuru Kenyatta does not appear for trial, and we pushed back as best we could speaking to state parties and pointing out the fact that Kenya was trying to amend the Rome Statute by the back door.

We have been called names on social media and fellow countrymen and women here have accused us of unpatriotic behaviour claiming we 'want our President to be jailed.' But we have been too busy defending the rule of law to respond to these attacks. We will leave history to be the judge.

And so as the curtain comes down on the ASP, we return home with a sense of satisfaction in the knowledge that since the government of Kenya has been privatized and deployed to speak for two people, this last two weeks, we have done our best to be the voice of those who are not able to speak for themselves.

Against Goliath...

When you have a government delegation with unlimited resources and the AU behind its position; when there are closed door meetings you cannot access and can only wait for the latest draft to come out showing the latest compromise, so that you can take it and start the next round of talking to the states to persuade them how unreasonable it is; when respectable government officers remove our information materials from the display table so that others may not know the truth; it can all get so exhausting. It is easy to give up. Until we remind ourselves why we are here. We are here because there are 1,133 Kenyans who are not here, who will never be here. Their voice must never be allowed to be silenced. — at the ICC Assembly of State Parties Meeting taking place at the World Forum Center, Den Haag.

Dispatch from The Hague

The Hague, Saturday 23rd November 2013.

At a side event organized for African states in the Africa Room at the World Forum by the Coalition on the ICC, Attorney General Githu Muigai read the usual script about how the government has cooperated fully with the ICC etc etc. But this time he went one step further saying that we in civil society should disclose our antecedents with regard to the Kenyan cases. He said that he was speaking for the government and we should disclose who we speak for. My reply was as follows:

"The government has perfected the art of obfuscation and turning the ICC narrative on its head. But let us be clear why we are here. We are here because Kenya has failed dismally to provide justice for victims of post election violence.

When he taught me law, Prof. Githu Muigai taught me among other things that the law was a tool to pursue truth and to achieve justice. I must have missed class the day he taught the lesson that we should use our education to help people in power to find the most legal ways of breaking the law.

Today, the AG is a part of a big government delegation that is going around the world making the case for the Kenyan trials to be stopped, and yet he has drafted laws at home seeking to curtail alternative voices so that only the voices of Uhuru Kenyatta and William Ruto and their supporters are heard.

The AG asks who we speak for. I speak for the 1,133 people whose voices were permanently silenced in 2008, the 600,000 who were displaced, the hundreds who were raped and all those who lost their livelihoods.

Our choices had their consequences: the short story of two friends who took different paths...

1994 is a lifetime away, and yet I remember it as if it was just yesterday. I was a graduate student at Oxford University reading international law and comparative human rights. I had bumped into a tall, graceful and intelligent Kenyan woman at a social event and we had struck up a conversation. I later found out that she was a Kenyan diplomat recently arrived at Oxford for a one-year mid-career development course. We became friends and I would invite her from time to time to attend events at Jesus College where I was serving as President of the Graduate Common Room.

On one such occasion, I invited her to a talk I was to deliver to a mixed audience of dons and students. I spoke of the emerging world order that would shape the world of the 21st Century after the fall of the Berlin Wall in 1989. In my talk, I envisaged a world that would no longer be dominated by states and multilateral institutions such as the UN and the World Bank, but that would be increasingly shaped also by civil society, both global and national, as citizens found their voices and organized themselves along common causes. It seemed a fairly novel idea at the time. But it seemed to have left a lasting impression on the mind of my new friend for she has always brought up that talk and what it foretold whenever she has had to introduce me to someone new.

This past week I bumped into my friend again during the Assembly of State Parties of the International Criminal Court in The Hague. She is here on a mission. To persuade the international community to stop the prosecution of her boss and his deputy for their alleged involvement in the worst atrocities to have occurred in Kenyan history. I too am on a mission. To speak up for the 1,133 Kenyans whose voices were permanently silenced six years ago, the 600,000 who were rendered homeless, the hundreds who were raped and the thousands who lost all their livelihoods. They have waited for six years for justice. It would be a travesty to ask them to continue waiting for another five or ten years.

And so my friend and I find ourselves on different sides of that world that I foresaw almost two decades ago, fighting for causes we both believe to be right, but knowing deep down that we both can't be right. One thing is clear, we both claim to be doing what we are doing in a far away land for the love of our country.

I meet her again at the delegate's lounge and we exchange pleasantries, promising to give one another a call and have coffee when we are back home, but knowing full well that that will not happen.

Somehow I miss our days among the dreaming spires of Oxford when we imagined the world as it was about to become not knowing that it was so much easier to dream about that world than it would be to eventually live in it.   

IMMUNITY WILL MEAN IMPUNITY

THE 12^TH ASSEMBLY OF STATE PARTIES OF THE INTERNATIONAL CRIMINAL COURT

THE HAGUE, NETHERLANDS

20 – 28 NOVEMBER 2013

Debate on Prosecuting Heads of State and Government and its Consequences of Peace, Stability and Reconciliation

Remarks by Njonjo Mue, Human Rights Lawyer and Kenyan Transitional Justice Expert

On behalf of Kenyan Civil Society.

Moderator, distinguished delegates, ladies and gentlemen,

I thank you for this opportunity to address the Assembly on these important discussions on the indictments of sitting heads of states.

There is need to look at the impact the proposed head of state immunity will have on victims and affected communities.

Today as we discuss the proposed amendments to the rules of procedure and the Rome Statute it is important to take into consideration the following realities touching on the affected communities, victims and by extension post conflict societies:

1.       That the Rome Statute system deliberately ensured that there would be no immunity for any individual on the basis of official capacity. Equality before the law for grave crimes is a fundamental tenet that is not only recognized by the Rome Statute but also by international practice and increasingly adopted by national jurisdictions. For example, contrary to the assertion of the Attorney General, my country Kenya has codified this tenet into its Constitution. Article 143 (4) provides that immunity of the President from criminal prosecutions does not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.

The perspective that the court is a court whose justice applies equally to all regardless of their status in society is the very reason it has received significant support from post conflict countries and more so those that the court is actively involved in.

Most Victims and affected communities have supported the court because of the realization that the court is capable of dispensing justice even when the alleged perpetrators are the most powerful members of society. A reality that does not exist in the judiciaries of most post conflict States.

The proposed amendments are likely to reduce the ICC to the same situation as the national judiciaries that affected communities rarely can place their faith in. In other words, the proponents of these amendments seek to remake the Court in the image of the very inadequate judicial systems that the Court was created to complement.

2.       The Rome Statute targets only those most responsible for serious crimes of international concern. Looking at the cases that have been opened both at the ICC and other international tribunals, those most responsible tend also to be influential members of society who have the power and financial wherewithal to organise and plan for systematic commission of very serious crimes.

The proposed amendments would give those individuals the incentive to use their influence to capture power in order to evade accountability. These amendments therefore risk making impunity a prize to be won in an election, as well as a reason why having won that prize, leaders are likely to cling onto power to continue evading accountability.

Kenya’s Attorney General says that Kenya is a willing member of the Rome Statute and was not dragged kicking and screaming to the ICC. I agree with him. But once it became clear who was sought to be indicted, that it was some of the most powerful people in the country two of whom subsequently became President and Deputy President, the government has pulled out all the stops to enable the accused persons to evade accountability. The Prosecutor of the ICC is on record as saying that she has faced serious challenges with regard to cooperation from Kenya.

3.       Victims and affected communities would be required by the proposed amendments to postpone their desire for justice, simply because the perpetrator is a head of state. What message would we be sending to the affected communities? That their dignity is dispensable as compared to the dignity of the heads of state who would have a free license to commit serious atrocities and evade justice so long as they are heads of state? Isn’t this the very reason that the deliberations on the establishment of the of the Rome Statue contemplated and forestalled this very threat by enacting Article 27 of the Statute?

4.      It has been suggested that the proposed immunity is not substantive, but only postpones the time when a serving head of state may be indicted until after they have left office. However, in states that have weak judicial systems, non-existent or ineffective witness protection agencies, and where witnesses’ lives are put indefinitely on hold sometimes following relocation to unfamiliar foreign countries, proposing that a trial be put on hold for five or ten years will have the practical effect of leading to the effective collapse of such a trial. Immunity will mean impunity.

5.      In conclusion, if as we all seem to agree, that justice is vital for sustainable peace and reconciliation, then accepting head of state immunity in circumstances that lead effectively to the collapse of the justice project will undermine rather than promote peace, stability and reconciliation.

Thank you.

22.11.13