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Raila disowns Kalonzo shuttle to block Hague

Vice President Kalonzo Musyoka (left) and Prime Minister Raila Odinga at KICC during a function on March 30, 2010. The PM’s party, ODM, has made it clear that the shuttle diplomacy mission is not a decision of the Cabinet. Photo/FILE

Splits evident in the top government leadership over The Hague trials came out into the open on Wednesday with Prime Minister Raila Odinga disowning shuttle diplomacy undertaken by Vice President Kalonzo Musyoka.

The Vice-President has stated publicly that he has acted under the instructions of President Kibaki in a series of visits to African capitals lobbying for support to have ICC action on Kenya’s post-election violence deferred.

But on Wednesday the Prime Minister said the trips by Mr Musyoka and a few other ministers were not sanctioned by the Cabinet, and therefore did not reflect the government position. (Read: Raila disowns VP's diplomatic offensive)

“I can tell you that we never talked about the issue of shuttle diplomacy,” said Mr Odinga. He added: “What we agreed on was referral and not deferral of the cases involving the post-election violence suspects.”

The PM’s party, ODM has made it clear, through deputy party leader Musalia Mudavadi, that the shuttle diplomacy mission is not a decision of the Cabinet.

But even as Mr Odinga was making the statement, Mr Musyoka was scheduled to leave Nairobi on another mission, this time to Tripoli, Libya.

His statements contradicted that of Mr Musyoka who earlier at a separate news conference, said the diplomatic campaign had the blessings of the President.

He said he was following President Kibaki’s directive, as his special envoy, in sending special messages to his African counterparts ahead of the African Union heads of State summit scheduled for Addis Ababa next week.

“I am not on a personal mission,” said the VP who was scheduled to leave the country last evening to solicit the support of Libyan leader Muammar Gadaffi on the plea Kenya wants to push at the AU Summit.

The visits threatened to stir a diplomatic battle during next week’s AU gathering after the head of the ICC political wing, Mr Christian Wenaweser, delivered a letter to Addis Ababa urging African states to stick with the ICC. (Read: ICC cautions AU over Kenya bid to defer trials)

Mr Wenaweser, the president of the State parties to the ICC, is expected in Kenya on Thursday. At his news conference, Mr Odinga said what the Cabinet had agreed on was the referral of the cases involving the masterminds of the post-election violence to the ICC and not to defer them.

He continued: “How does the African Union help Kenya yet we are already a signatory of the Rome Statute? If we want to move away from the Rome Statute -which I don’t support - we would rather deal directly with the ICC.”

Article 16 of the Rome Statute defines how the deferral of either investigations or prosecutions can be achieved. Cases before the ICC can only be deferred, or suspended, on a resolution of the United Nations Security Council.

No investigation or prosecution can be commenced or proceeded with for 12 months after the Security Council has requested the Court to defer a matter.

The quest for a deferral is premised on the basis that Kenya is reforming the Judiciary and police force and will therefore be capable of establishing a credible special tribunal to try on home soil the six individuals under investigation.

ICC prosecutor Luis Moreno- Ocampo in December named Deputy Prime Minister Uhuru Kenyatta, suspended Cabinet ministers William Ruto and Henry Kosgey, Public Service head Francis Muthaura, former Police Commissioner Hussein Ali and Kass FM presenter Joshua arap Sang as the six individuals he wants to prosecute.

If the UN Security Council is satisfied that effort has been made to set up a credible local tribunal, the period of time for deferring the cases can be extended. Failure to set up these institutions means that the ICC can take up the cases and continue investigations and prosecutions.

Referral, which according to Mr Odinga was what the government agreed on, is another process altogether. Under Article 14 of the Rome Statute, a member country may refer to the ICC crimes on its territory requesting investigation and prosecution at The Hague if they meet the threshold outlined for genocide, crimes against humanity and other serious offences.

So Mr Odinga is saying in effect that the government agreed to refer the matter of the post-election violence to the ICC, rather than seek a delay or postponement of any action. The different positions indicate a clear split between Mr Odinga’s ODM and President Kibaki’s PNU wings of the coalition government.

Mr Musyoka said on Wednesday: “I am going on a special mission as the special envoy of the President of the Republic of Kenya. Therefore anyone thinking the Vice-President is going on his own volition needs to be thus directed.”

“If you talk about the President, this supersedes all the others... If you take the view that the President is the head of government and the head of State and he chooses to dispatch his Vice-President and Cabinet ministers, his intentions do not normally get questioned.”

Mr Musyoka has already been to a number of African countries including South Africa, Malawi, Ethiopia and Nigeria. Others who have been on the missions are ministers Chirau Ali Mwakwere, who has visited Botswana, Lesotho and Zimbabwe, Njeru Githae Djibouti and Tanzania, among others.

The VP said even though the matter had been discussed and passed by the Cabinet committee on Defence and Foreign Relations, chaired by the President and which the Prime Minister is also a member, he however admitted the consultations were not done fully. He denied that his mission to convince African countries to walk out of the Rome Statute en-masse.

The shuttle diplomacy, however, has attracted international concern with the ICC’s Wenaweser expected in the country on Wednesday.

Mr Wenaweser was in Addis Ababa on Tuesday where he asked the African Union not to support Kenya’s position. He handed a letter from the ICC to AU chief Jean Ping asking the AU to cooperate with The Hague in its mission to end impunity on the continent.

The letter also expressed its deep concern about a growing trend of anti-ICC sentiments and continental pull-out campaign spearheaded by Kenyan politicians. After receiving the letter, Mr Ping reiterated Africa’s commitment to fight impunity but stressed a need for continued dialogue between AU and ICC.

In Gaberone (Botswana), foreign minister Phandu Skelemani stated that Botswana has no intentions of pulling out of the ICC any time soon. “We are full members of the ICC. We intend to keep it (membership) until we feel there is something wrong with it. At the moment we have no qualms with it,” Mr Skelemani said after Mr Mwakwere visited last week.

In Kericho, Belgut MP Charles Keter on Wednesday urged President Kibaki to write to the United Nations on Kenya’s intention to pull out of the ICC and the deferral of its case.
Mr Keter said the President should show leadership by exercising his powers as the President and Head of State and take the move without “fearing anybody.”

He said there was no need to “consult anybody on the matter,” and he was optimistic that the African Union (AU) would support the country’s move.

Mr Keter, who was speaking in his constituency during the ground breaking ceremony for the Kericho West  district headquarters in Sosiot,  claimed the ICC was “confused” and cited instances where it was now writing letters to some of the Six individuals mentioned by prosecutor Moreno-Ocampo.

Keter said the ICC lacked a comprehensive intelligence network and cited the case of Kiambaa Church victims where he added: “Evidence has never been taken from the victims of the burning. He cast the ICC prosecutor Luis Moreno-Ocampo as “a politician”.

Reports by Dave Opiyo, Argaw Ashine, Benedict Tirop and Wene Owino.