Foreign Affairs Permanent Secretary Thuita Mwangi (R) is currently facing charges of corruption.
Letter To Security Council Reeks Of Official Impunity
Kenya has dented her reputation and image globally. The purported letter to the United Nations Security Council by the government of the Republic of Kenya seeking termination of the ICC cases is a disgrace and exposes the egregious, audacious and appalling official impunity prevailing in Kenya.
The letter, grossly lacking in legal basis, is written in furtherance of the past futile shuttled diplomacy that wasted taxpayers’ money contrary to the Constitution.
Uhuru Kenyatta, William Ruto and Joshua Sang are accused persons before the court as natural persons. They have no official capacity and even if they have, it is irrelevant to the court. The cases are between the prosecutor of the Court and three individuals not against Kenya. In this regard, the authors of the letter are completely incompetent to write and send a violence-threatening letter to the United Nations Security Council.
The source of this letter can only be from the outgoing Foreign Affairs Permanent Secretary Thuita Mwangi, who is on record attacking the ICC and being part of the insidious shuttled diplomacy. Kenya representatives to the United Nations Machaira Kamau and Koki Muli are answerable to Mwangi Thuita.
Mwangi is currently facing charges of abuse of office, conspiracy to commit fraud and willful failure to comply with procurement rules in purchasing the Kenya Embassy and ambassador’s residence in Tokyo. Macharia and Koki are public officers paid through taxpayers to advance and protect Kenya's interests at the United Nations but not to defend and perpetuate impunity. In compliance with the law, Mwangi Thuita should have been suspended from holding any public office until his case is determined. He has not yet been suspended, explaining who protects him and sanctioned the writing of the letter.
The letter to the UN is not for the advancement of peace and security. It directly signals that despite important progress made in moving Kenya forward on the path of democracy, rule of law and respect for human rights, many challenges remain. The UN Security Council exists not only to ensure accountability for perpetrators of crimes but also to secure lasting peace for all people of the world. The Council must therefore escalate coordinated efforts to ensure justice and genuine peace prevails not to protect impunity.
By engaging in an embarrassing act, Mwangi Thuita, Koki Mulli and Macharia Kamau demonstrate a lack of full understanding of the difference between the UN Security Council’s political mandate and the ICC’s judicial mandate.
The Rome Statute dictates that a state seeking a finding of inadmissibility of cases before the ICC must satisfy the judges that it is genuinely investigating and prosecuting the same persons for the same conduct as that under investigation by the Office of the Prosecutor; that is the law and nothing short of that will suffice.
The government has completely failed the threshold of conducting fair, just, and transparent judicial proceedings for all alleged perpetrators while also continuing to respect the ICC judicial process. Instead, it continues to engage in and support activities geared towards shielding the accused persons before the ICC using public funds. Under such circumstances and continued interference or tampering of witnesses makes the ICC’s mandate essential to ending impunity in Kenya. The office of Prosecutor has to take tough decisions against those responsible for tampering with witnesses in Kenya without further procrastination.
We have to stress the importance of all of us working together to realize a comprehensive strategy for justice. The progress made in ending impunity cannot eclipse the challenge that Kenya faces in addressing the legacy of so many years of impunity. It need not be a challenge that the country faces alone. Kenya must realize that with the ICC intervention, what happens with the three accused Kenyan individuals before the Court is a page in the history books of international justice, no matter the end results.
The prosecutions at the ICC are a shining example of what can be achieved through human endeavours to seek justice. These trials are Kenya’s Nuremberg moment. The trials endeavour to seal the primacy of the rule of law, due process and human rights for future generations.
The constitution of Kenya forbids shielding or protecting individuals accused of crimes that attract no immunity. In fact, Uhuru Kenyatta and William Ruto should be impeached in accordance with the Constitution. The threshold of ‘serious reasons for believing that the President has committed a crime under national or international law’ has been confirmed by a court of law and due process fully observed. The Parliament is urged to initiate the process.
UN Security Council cannot and should not get involved in political considerations, neither should it ever stretch the interpretation of the norms adopted in Rome. Equally, the Council, its Members or any State for that matter should never seek to interfere with the judicial processes of the Court.
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