African leaders discussed a drastic new decision against ICC that would, in practice, give Sudan President Omar Bashir impunity from prosecution for war crimes at The Hague.
African officials said the surprise new draft was circulated by Libya, which is hosting the 13th African Union summit.
From The Standard, Nairobi, Kenya, Thursday, 02 July 2009:
Poll chaos: Team to meet ICC prosecutor
By Standard Team
Chief mediator Kofi Annan’s meeting with Kenya’s delegation on post-election violence in Geneva was inconclusive as he asked them to meet International Criminal Court Chief Prosecutor Louis Moreno Ocampo first.African leaders tackle continent's challenges
The news filtered along with revelation the Cabinet already is toying with a "Third Option’, which sidesteps a hostile Parliament and could lead to creation of a special division of High Court to handle post-election violence cases.
Annan opened the door for the team as 30 African Heads of State meeting in Sirte, Libya, among them President Kibaki, said they "shall not co-operate" with the ICC "for the arrest and surrender of indicted personalities".
The position awaiting formal ratification by the African leaders could widen the split between Parliament and the Government on whether to go for The Hague or a local tribunal.
Already, Parliament has once stopped a bid for a local tribunal by President and Prime minister Raila Odinga.
Sources reveal the meeting with Annan took about four hours of highly guarded discussions on Kenya’s request for extension of the August deadline. Annan ruled further talks would only take place after their familiarisation tour of The Hague court today.
In the Kenyan delegation out to buy more time to set up a local tribunal, or else Annan would pass the matter to ICC, were Land Minister James Orengo, Mutula Kilonzo (Justice), Attorney General Amos Wako, and Justice Assistant Minister William Cheptumo.
August deadline
The team meets Ocampo this morning even as Annan remained non-committal on whether he would extend the August deadline for handing over the ‘envelope’.
Issues discussed with Annan included modalities for establishing a special tribunal, as recommended by the Justice Phillip Waki Commission on post-election violence.
A joint statement from African Union Panel of Eminent African Personalities said: " They agreed, in particular, to be in touch again after the Kenyan delegation has had an opportunity to meet with Ocampo."
In Sirte African leaders discussed a drastic new decision against ICC that would, in practice, give Sudan President Omar Bashir impunity from prosecution for war crimes at The Hague. African officials said the surprise new draft was circulated by Libya, which is hosting the 13th African Union summit.
The draft decision obtained by Associated Press provides that AU countries "Shall not co-operate" with the ICC for the arrest and surrender of African indicted personalities".
Annan and the Kenyan team agreed to continue interacting on the establishment of a special tribunal in the coming days, with a view to reaching an understanding on the matter.
The Standard has learnt Mutula floated the ‘Third Option’ to the Cabinet. The option is borrowed from a similar arrangement in Uganda between the Government and Lord’s Resistance Army.
special courts
If it takes off, the special courts are to be established by the Chief Justice who has powers to do so under the Constitution.
According to the new arrangement the special courts shall be established to try individuals who are alleged to have committed serious crimes during post-election violence. Some lawyers have argued it could be abused. They have also asked Annan not to tolerate impunity by conceding to demands of the Government, which they dismissed as time buying tactics.
Central Imenti MP Gitobu Imanyara warned MPs would block all attempts to create a local tribunal or a special division of the High Court. Imanyara argued the Government lacked political goodwill to implement it because its members were implicated.
"No amount of excuse would be allowed again. Let Annan hand over the envelope to the prosecutor of the International Criminal Court at the Hague," Imanyara added.
Senior Counsel Paul Muite says attempts to create a special division could only be backed by amendments to the Constitution. "There is no short-cut and I doubt if Parliament is in the mood to pass the new law," Muite said.
If the special courts are to be established they shall have their own registry and as the case was in Uganda they shall facilitate protection and participation of witnesses, victims, women and children.
Sources said Mutula and Wako were preparing a Bill on the ‘Third Option’ to be tabled in Parliament when it reconvenes a week to August. It is expected that the special court will operate under the current laws, only that it would deal specifically with suspects of post-election violence.
Also to be established are a special appeals courts that would hear appeals for those who would be dissatisfied with the rulings by the special court.
Human rights lawyer Haroun Ndubi said the special division of the court would run into problems of prosecutorial powers, which are vested in the Attorney General, and only a change of Constitution can address it.
Sources at the Justice Ministry said prosecutions should focus on individuals alleged to have planned or carried out widespread, systematic or serious attacks directed against civilians or who are alleged to have committed grave breaches in accordance with the Rome Statute to which Kenya is a signatory.
By ALFRED de MONTESQUIOU – Thursday, 02 July 2009:
SIRTE, Libya (AP) — Africa's leaders were locked in a heated debate Thursday over a draft African Union summit decision that would give Sudan's president continent-wide impunity from prosecution for war crimes by the International Criminal Court.
African officials said the surprise new draft was circulated by Libya, which is hosting the 13th African Union summit of heads of state in the coastal town of Sirte, east of the capital, Tripoli.
The draft obtained by The AP says the African Union "deeply regrets" that the United Nations ignored its previous demand for the ICC in The Hague to postpone its arrest warrant against Sudanese President Omar al-Bashir for crimes in Darfur.
Therefore, it says, AU countries "shall not cooperate" with the ICC "for the arrest and surrender of African indicted personalities."
If adopted, the common ruling could be a powerful blow to prosecuting African officials for war crimes.
Heads of states at AU summits reach their decisions behind closed doors and by consensus, not by vote. It was not clear if the new measure would be approved Thursday.
Several African leaders appeared to strongly resist the draft decision.
"Certainly that's not the position that we take," Ghana's Foreign Minister Muhammad Mumuni told reporters.
"For us in Ghana there is absolutely no equivocation at all about our acceptance and respect for the jurisdiction, the integrity and high honor of dignity of the ICC," he said.
Mumuni added that Ghana supports the AU's call to postpone the "ill-timed" ICC warrant against al-Bashir, which he said imperiled peace efforts in Sudan and could create "a huge power vacuum."
Ghana is among 30 African countries that are party to the international court. Reed Brody, a spokesman for Human Rights Watch, said the draft decision "basically orders them to flout their legal obligations."
The draft appeared to contradict assurances by the AU's executive chairman, Jean Ping, that the African Union would not reach hard decisions against the ICC. Ping said Wednesday that the AU would certainly not reach "dramatic or binding conclusions" for African countries who are party to the ICC.
"Though it is true that African heads of state are tired of being the only ones targeted" by the court, Ping said.
Human Rights Watch's Brody said it was unclear whether the draft would be passed.
"The question is whether Libya will be heavy handed" in pushing the decision through, he said on the sidelines of the summit.
Libya was one the first countries to ignore the ICC and host al-Bashir despite the international warrant against him issued in March. Al-Bashir is accused by the ICC prosecution of war crimes and crimes against humanity for masterminding Sudanese government violence that has led to the death of some 300,000 people in Darfur since 2003.
Sudan's acting Foreign Minister, El Samany El Wasila, hailed the new AU draft.
"I think it will be adopted, it will be Africa's confirmation that the ICC is politically motivated and should be ignored," El Samany El Wasila told The Associated Press.
El Wasila said the international court had proved it was biased by only acting against Africans "while it ignores Israel for Gaza or (former U.S. President George W.) Bush for Iraq."
Other issues at the summit included improving security across Africa and fighting piracy and civil war in Somalia. Libya, meanwhile, was spearheading a drive to lay the groundwork for an eventual United States of Africa.
Heads of state are to consider a decision to change the AU executive bodies from a "Commission" into an "Authority." The goal is to simplify the African Union and extend its powers over foreign affairs, the economy and defense as a buildup for what Libyan leader Moammar Gadhafi ultimately envisions as a common federal government for Africa.
But some of the continent's wealthier nations, led by Nigeria and South Africa, appear to be resisting the move. African diplomats say there are worries the new structure could become overbearing.
There is a need to continue "building consensus on a very important matter like that," said Ghana's Mumuni.
A Libyan official, who asked not to be named because of the sensitivity of the issue, said Gadhafi stormed out of the conference room at one point because other leaders didn't follow his views. After returning, he told his African counterparts they must reach a decision on the AU Authority before the summit ends, the official said.
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