An opposition protester holds a machete in front of burning shops in Nairobi's Kibera slum on December 30, 2007. On that evening Kibaki was hurriedly sworn in as president. As the news spread, burning and looting took place throughout the night across the country.

© 2007 Reuters

(Johannesburg) - The Kenyan government should reaffirm its commitment to the International Criminal Court (ICC), African civil society organizations and international organizations with a presence in Africa said in a statement today. African countries that are states parties to the ICC should reject any steps at the upcoming African Union (AU) summit that would undermine justice for victims in Kenya, the groups said.

The statement follows reports in the Kenyan media that some Kenyan government officials are soliciting the support of African states at the AU summit for a United Nations Security Council deferral of the ICC Kenya investigation under article 16 of the Rome Statute, the ICC's founding treaty. Kenyan officials are citing government plans to establish a domestic judicial mechanism as a basis for deferral. News agencies have also suggested that Kenya is attempting to obtain backing from other African states for a move to withdraw from the Rome treaty.

"Efforts to disrupt the ICC process in Kenya threaten to block justice for victims of the worst crimes," said Oby Nwankwo of the Civil Resource Development and Documentation Centre in Nigeria. "Our governments should be firm that the AU meeting will not be used to undercut the court's ability to ensure accountability on the continent and throughout the world."

ICC judges are currently considering a December 2010 request by the ICC prosecutor for summonses for six people for crimes against humanity. The crimes are alleged to have been committed during the 2007-2008 post-election violence, which left 1,133 people dead and caused 400,000 to flee their homes. Three years later, in spite of multiple promises to bring those responsible to account, the Kenyan government has taken no real action on national trials.

"Given the Kenyan government's absolute failure to bring justice to victims, new promises of domestic prosecutions ring hollow," said Stella Ndirangu, legal officer with the Kenyan Section of the International Commission of Jurists. "But even if Kenya were to move ahead with some national trials, that would not be a legal ground for deferral."

Article 16 of the Rome Statute allows the UN Security Council to defer an ICC investigation or prosecution for renewable 12-month periods under the council's Chapter VII authority to preserve international peace and security. No evidence has been presented to suggest that the ICC's Kenya investigation is detrimental to the maintenance of international peace and security, civil society organizations said. Article 16 is not intended for deferrals to make way for national trials.

While credible national trials are necessary to ensure wider accountability for crimes committed in Kenya, their possibility should not be used as pretense to bring an end to the ICC process in Kenya, the groups said. If Kenya prosecutes those named by the ICC prosecutor in his request, it can seek to take back the cases, as provided in the Rome Statute. Neither withdrawal from the treaty nor a deferral would be required.

"Thousands of Kenyans suffered extreme violence and gross violations of human rights," said Anton du Plessis, head of the International Crime in Africa Programme at the Institute for Security Studies in Pretoria. "The Kenyan government should reaffirm its commitment to seeing justice done for these atrocities and support the ICC process."

The following organizations have endorsed the statement:

  1. Access to Justice, Lagos, Nigeria
  2. Action Against Impunity for Human Rights (ACIDH), Lubumbashi, DRC
  3. Action of Christian Activists for Human Rights in Shabunda (ACADHOSHA), South Kivu, DRC
  4. Africa Legal Aid
  5. Africa Centre for Open Governance (AfriCOG), Kenya
  6. African Assembly for the Defense of Human Rights (RADDHO), Dakar, Senegal
  7. African Association for the Defence of Human Rights (ASADHO), DRC
  8. Amnesty International, Dakar, Senegal
  9. Association of Lake Kivu Shipowners (ASSALAK), South Kivu, DRC
  10. Benin Coalition for the International Criminal Court, Cotonou, Benin
  11. Burundi Coalition for the International Criminal Court, Bujumbura, Burundi
  12. Children Education Society (CHESO), Dar es Salaam, Tanzania
  13. The Center for Research on Environment, Democracy and Human Rights (CREDDHO), Goma, DRC
  14. Central African Republic Coalition for the International Criminal Court, Central African Republic
  15. Cite des Droits de l'Homme et de Paix (CIDHOP), DRC
  16. Civil Resource Development and Documentation Centre (CIRDDOC), Enugu, Nigeria
  17. Civil Society Alternative Process of Sierra Leone (CSAP-SL), Sierra Leone
  18. Coalition of Eastern NGOs (CENGOS), Enugu, Nigeria
  19. Coalition for Justice and Accountability, Freetown, Sierra Leone
  20. Comorian Coalition for the International Criminal Court, Comoros
  21. Congolese Coalition for Transitional Justice (CCJT), DRC
  22. Congolese Initiative for Justice and Peace (ICJP), Bukavu, DRC
  23. East and Horn of Africa Human Rights Defenders Project (EHAHRDP), Kampala, Uganda
  24. Federation of Women Lawyers (FIDA), Nairobi, Kenya
  25. Freedom and Roam, Uganda
  26. Global Call to Action Against Poverty (GCAP), Arab Region Secretariat
  27. Human Rights and Advocacy Network for Democracy (HAND), Khartoum, Sudan
  28. Human Rights Network-Uganda (HURINET), Kampala, Uganda
  29. Human Rights Watch, Johannesburg, South Africa
  30. Independent Medico-Legal Unit, Kenya
  31. International Center for Policy and Conflict (ICPC), Nairobi, Kenya
  32. International Center for Transitional Justice (Africa)
  33. International Crime in Africa Programme, Institute for Security Studies, Pretoria, South Africa
  34. International Gay and Lesbian Human Rights Commission, South Africa
  35. International Society for Civil Liberties and the Rule of Law, Onitsha, Nigeria
  36. Ivorian Coalition for the International Criminal Court, Abidjan, Ivory Coast
  37. Kenya Human Rights Commission (KHRC), Nairobi, Kenya
  38. Kenyans for Peace with Truth and Justice (KPTJ), Kenya
  39. The Kenya Section for the International Commission of Jurists, Nairobi, Kenya
  40. Kituo cha Sheria, Kenya
  41. The Law Society of Zimbabwe, Harare, Zimbabwe
  42. League for Peace and Human Rights in the DRC (LIPADHO), DRC
  43. Liberia Coalition for the International Criminal Court, Monrovia, Liberia
  44. Livelihood Improvement Programme (LIPRO), Uganda
  45. National Coalition on Affirmative Action, Enugu, Nigeria
  46. National Organization for Legal Assistance (NOLA), Dar es Salaam, Tanzania
  47. Nigerian Coalition for the International Criminal Court, Abuja, Nigeria
  48. Open Society Justice Initiative
  49. The Populace Foundation-Uganda (TPF-Uganda)
  50. Réseau des Associations des droits de l'Homme du Sud Kivu (RADHOSKI), DRC
  51. Solidarity of Women for Peace and Integral Development (SOFEPADI), North Kivu and Orientale, DRC
  52. SOS Exclusion, Ivory Coast
  53. Southern Africa Litigation Centre, Johannesburg, South Africa
  54. Trade Union Confederation of Sierra Leone (TUC-SL), Sierra Leone
  55. Uganda Coalition for the International Criminal Court, Kampala, Uganda
  56. Victimes du Régime de Hissène Habré, Chad
  57. VISION Humanitaire Mondiale, DRC
  58. West African Bar Association, Abuja, Nigeria

List of signatories updated January 29, 2011 and February 3, 2011.