AU: ICC cannot prosecute sitting head of state

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Associated Press

Posted on October 12, 2013 at 10:04 AM

Updated Saturday, Oct 12 at 4:36 PM

ADDIS ABABA, Ethiopia (AP) — The African Union will not allow a sitting head of state to be prosecuted by an international tribunal, the body's chairman said Saturday, in a clear warning it hopes to halt the crimes against humanity trial about to begin in the Hague against Kenya's President Uhuru Kenyatta.

African countries accuse the International Criminal Court of disproportionately targeting African leaders. The court has indicted only Africans so far, though half of the eight cases it is prosecuting were referred by African governments.

The AU's move was immediately criticized by rights groups, both in Kenya and abroad.

The AU doesn't have the power to prevent a head of state being tried in the Hague, including Kenyatta, who is accused of complicity in ethnic unrest following Kenya's disputed 2007 election, in which over 1,000 people were killed.

But the group plans to contact the United Nations Security Council to ask for Kenyatta's case to be deferred before his trial begins on Nov. 12, said Ethiopian Foreign Minister Tedros Adhanom Ghebreyesus, the chairman of the AU executive council.

The Security Council has the power to order a one-year deferral, but whether it would is another question. It has never before deferred a case. Ghebreyesus said if it is not granted, the group will ask for a postponement of Kenyatta's trial, and if that is not granted then African leaders have decided Kenyatta should not appear before the court, he said.

The decision at the close of a one-day heads of state summit was unanimous, said Ethiopian Prime Minister Hailemariam Desalegn. Both Kenyatta and Sudan President Omar al-Bashir— also wanted by the war crimes tribunal — were in attendance.

Kenyatta, 51, has been in office since April. He is from the Kikuyu ethnic group and is accused of having financed and helped organize the Mungiki, a militia-like organization that was implicated in the worst atrocities against other ethnicities in the wake of the 2007 poll.

The call for a deferral to the case "is nothing more than another attempt to derail and delay justice for Kenya's victims and betrays the AU's purported commitment to fight impunity," said Davis Malombe, deputy executive director of Kenya Human Rights Commission.

The declaration comes as the lawyers appointed to defend Kenyatta at the Netherlands-based tribunal submitted new evidence to the court, claiming that they have recordings proving witnesses testifying against Kenyatta had switched from being defense witnesses "for money."

Counsel Steven Kay, who heads the defense team, also says they have evidence the written statements of five prosecution witnesses were in fact created by a single person.

He called on the court to "permanently halt the proceedings on the basis of an abuse of process as a fair trial is no longer possible."

Kenya's Deputy President William Ruto and broadcaster Joshua Sang also have been charged with crimes against humanity. Their trials, which began last month, continued Friday.

Arriving in the Ethiopian capital before the meeting Kenyatta delivered a fiery speech, portraying the ICC as a vestige of imperialism:

"Even though we were dominated and controlled by imperialists and colonial interests in years gone by, we are now proud, independent and sovereign nations," he said. "More than ever, our destiny is in our hands. Yet at the same time, more than ever, it is imperative for us to be vigilant against the persistent machinations of outsiders who desire to control that destiny."

He went on to thank the African Union for backing him: "As Kenya's President, it gives me a feeling of deep and lasting pride to know that I can count on the African Union to listen and help in trying times. Africa has always stood by our side."

Kenya's parliament last month voted to withdraw from the ICC. The African Union special summit being held this weekend was convened at Kenya's request.

Before the summit political insiders in Kenya's government said that African countries may decide to sever ties with the ICC in solidarity with Kenya.

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Michael Corder contributed to this report from the Hague, Netherlands.

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