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ODM Statement To UN Security Council
ODM Statement To UN Security Council
BOX 2478-00202
MENELIK ROAD NAIROBI
KILIMANI AREA Tel: 020-20253481
NAIROBI Fax: 020 217 7703
11 March 2011
Your Excellency,
Background:
This petition presents a set of incontrovertible facts which will assist The
Security Council and other interested parties to understand why the Kenyan
Cases at the ICC should neither be deferred nor referred. These facts justify
why the ongoing ICC process is the best and only means of securing justice to
the innocent victims of Kenya’s post election violence of 2007/8. It is
imperative to underline the fact that the institutions, groups and individuals
that were allegedly involved in the planning and execution of the crimes
Chungwa Moja, Maisha Bora 1
against humanity during the 2007/8 post-election violence in Kenya continue
to operate unfettered and occupy important positions of power within and
outside government.
Sixteen Reasons Why the Kenyan Cases at the ICC must neither be
Deferred nor Referred to Kenya:
• The prosecution of the Kenyan Cases at the ICC does not pose any
threat to international peace and security. To the contrary, failure to
bring to justice the perpetrators of post-election violence poses grave
danger to Kenya’s internal peace and security.
• The ICC process was unanimously approved by the two parties under
the Annan-brokered National Accord, and the instruments that paved
the way for the process were signed by both the President and the
Prime Minister for and on behalf of their respective political parties,
which form a coalition.
• The great majority of Kenyans (more than eighty per cent) support the
ICC process as the most credible method to fighting the culture of
impunity in Kenya. Surveys by leading institutions in the country have
repeatedly confirmed this position.
• The judicial reforms contemplated under the new Constitution have not
been implemented. The judges and magistrates have not been vetted.
There is no independent prosecutorial authority.
• Local trials will be used to shield the suspects from justice. This was
recently demonstrated by the nominations of Mr. Githu Muigai and Mr.
Kioko Kilukumi to the positions of Attorney-General and Director of
Public Prosecutions, respectively, while they are on record as lawyers
for two of the ICC suspects. In addition, an ICC suspect chaired the
Panel that identified and nominated Justice Visram to the position of
new Chief Justice. Although President Kibaki was forced to withdraw
his nominations through public outcry, a court order and stinging
resolutions of the National Assembly Speaker, the Judicial Service
Commission, the Commission on the Implementation of the
Constitution, the Law Society of Kenya, the Federation of Women
Lawyers and nearly all Kenyan civil society groups; it demonstrated the
extent to which President Kibaki’s Party of National Unity and the six
individuals summoned by the ICC would go to defeat the cause of
justice.
• The request for a deferral of the Kenyan cases pending before the ICC
has been made by one side of the Kenyan coalition government, namely
the Party of National Unity headed by President Mwai Kibaki. The
Orange Democratic Movement headed by the Prime Minister Raila
Odinga, does not support that request.
• The deferral request should therefore be seen as evidence that the Party
of National Unity and President Mwai Kibaki are both unwilling and
unable to prosecute the six suspects for the crimes alleged by the ICC.
• The ICC process is the only opportunity that Kenyans have to break the
culture of impunity and the circle of elections-related violence.
• In view of the foregoing the request for deferral does not qualify or merit
consideration by the UN Security Council within the provisions of
Article 16 of the Rome Statute, or through any other provisions. This is
particularly the case because the Kenyan Situation at the ICC was not
originated by a referral by the UN Security Council. Consequently, the
request for a deferral is an unwarranted interference with the Court’s
mandate, its independence and impartiality.
We therefore submit that the request for a deferral by a section of the Kenyan
Government be rejected as being incompetent and frivolous.
On behalf of the Orange Democratic Movement and the Prime Minister of the
Republic of Kenya, The Rt. Hon. Raila Odinga, EGH, MP, I would like to
request you to bring this letter to the attention of all Council Members of the
Security Council and to have it issued as a document of the Council, as a
matter of great urgency.
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