Saturday, 30 November 2013


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