SA suggests a little TRC for Kenyatta

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AP

In this 2011 file photo, Kenya's President Uhuru Kenyatta leaves the International Criminal Court in The Hague, Netherlands.

Johannesburg - South Africa has urged the International Criminal Court (ICC) to follow its example and pursue reconciliation rather than formal criminal justice in dealing with Kenyan President Uhuru Kenyatta and Deputy President William Ruto, charged with crimes against humanity.

The ICC indictments against them for allegedly orchestrating political violence after the disputed 2007 elections have caused a major split between the AU and the ICC.

The AU wants the cases postponed while Kenyatta and Ruto are in office, to avoid undermining their governing of Kenya at a time of terrorist threat after al-Shabaab attacked Nairobi’s Westgate mall.

Last week the UN Security Council rejected a proposal by Rwanda, on behalf of the AU, to defer the cases for a year. The cases are on the agenda of the Assembly of States Parties, representing all the governments which belong to the ICC, at its meeting in The Hague. This week it will consider a proposal by Kenya to amend its Rome Statute to offer immunity from prosecution for sitting heads of state.

It will consider proposed amendments which would allow Kenyatta and Ruto to remain in Nairobi for all or part of their trials, participating in court proceedings by video.

Last week the Assembly of States Parties held a debate requested by the AU on the “Indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation”.

Kenyan Attorney-General Githu Muigai said the ICC trials had a negative impact on its ability to address the consequences of 2007-2008 post-election violence and its role in maintaining peace and stability in Africa. He cited terrorism and piracy in the region. He argued that immunity for sitting heads of state existed in many domestic jurisdictions and this should apply at international level. He listed situations around the world where international justice had not been applied.

But Njonjo Mue of the International Centre for Transitional Justice said on behalf of Kenyan civil society organisations that “immunity effectively means impunity”. Granting immunity for sitting heads of state would risk making immunity a prize to be won in elections.

George Morrero of the Kenyan Human Rights Commission cautioned that providing immunity to heads of state would contravene the very reason the court was created – to prosecute those who bear the greatest responsibility for the world’s gravest crimes. He warned it would give them an incentive to hold on to power, threatening to entrench dictatorship and impunity.

The South African government supported the attempt for deferral of cases by the Security Council, but has not declared how it will vote on the proposed amendments. But Deputy Justice Minister John Jeffery gave a hint of government thinking during the debate.

He said the assembly had to perform a “very delicate balancing act”, according to his notes. While accountability and the fight against impunity were non-negotiable, peace and stability were critical to the ICC attaining its objectives.

Jeffery suggested South Africa’s Truth and Reconciliation Commission (TRC) had achieved this balance.

“I wondered whether South Africa’s miracle solution under the TRC process would have been possible if there was an insistence of following a path of formal justice in criminal courts,” he said.

Sunday Independent