Deferral of Kenyatta and Ruto ICC trial could be granted

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At a summit in Addis Ababa, Ethiopia last week, the African Union (AU) called for the postponement of Kenya’s president Uhuru Kenyatta and deputy president William Ruto’s trial at the International Criminal Court (ICC).

The two have been accused for being instrumental in the 2007 and 2008 election violence and killings. The AU has argued that the ICC should bring no charges against current serving members of state.

“Should an event warrant that a case before the ICC be deferred, [it] should be submitted to the United Nations Security Council and the [council], looking at the security imperatives, can then make a decision as to whether to defer or not,” Sivu Maqungo, senior research consultant of Transnational Threats and International crime at ISS Africa, told CNBC Africa.

“What the African Union is asking for, in respect of a deferral, is consistent with what is contained already in the international criminal court statute.”

Maqungo added that the United Nations would not however consider the deferral based on the fact that Kenyatta and Ruto were currently heads of state.

The consideration will rather be based on security imperatives, and in this case, with the regard to the recent Westgate Mall terrorist attack in Kenya’s capital.

“Kenya now becomes part of the frontier against the fight on terrorism. Members of the security council [will now] be sympathetic towards the Kenyan cause in light of the attack,” Maqungo explained.

Using the Westgate Mall terrorist attack at the forefront of trying to obtain a deferral may be seen as misleading, but it plays a significant role in Kenya’s quest to end impunity.

“Had the deferral been requested absent of this terrorist attack, then there will be no security imperatives to warrant any deferral. The fact that the terrorist attack did occur does change the game,” said Maqungo.

“It’s now in the interest of either the United Nations Security Council or Kenya itself to make this fact available to the Security Council. [This is] to make a decision whether this [warrants] a deferral for those leaders to be able to focus on the fight against terrorism.”