DEFER THE ICC KENYAN CASE

Kenya is battling with implementation of its Agenda 5 of the mediated agreement of 2008 constitutional reforms which must be completed urgently in order to streamline its social, economic and political institutions. The country needs these reforms in order to move forward.

As nation a nation Kenya is gearing towards a General Election in 2012 which by virtue of the new constitution was to be held in August 2012 but due to a number of logistical problems dates are being floated for December 2012 and March 2013. This is a crucial election that will determine the governance strata of this nation.

Kenya must lay down proper and firm foundation for such an election without interference of other outside factors like the ICC intrusion that could torpedo much gained reforms and lead this country into another lawless situation similar to that of 2007-2008.

Again the level of apprehension and internal political squabbles and rivalry that the ICC matter has created in Kenya that could turn into, a self-made serious conflict if full trial commences furthermore the nature of political under handling by some countries in Europe and USA that fund ICC operations, interfering with the legal route is very dangerous for universal adherence to and implementation of international law at both national and international levels.

Polarized emotions over the ICC debate t could affect the nation's security and its security organs. For Kenya to keep watch on all the incursions of ICC outreach missions into Kenya and at the same time watch over the incursions of AI- Shabaab is courting political disaster. Kenya can not cope with all these events in the same year 2012 with all these factors at play in its body politics and therefore there is eminent threat to international peace in the region. Consequently this will lead to an international ceiling where the UN will be forced to come in, yet the framers of the Rome Statutes in 1998 envisaged that such scenarios would appear in future and hence Article 16 of the Rome Statute that spells out what could be done incase the continuation of an ICC case might trigger a conflict the UN Security Council under Article 16,of the Rome Statute of 1998,has a clear mandate to defer a case if conditions are such as is with the Kenyan case

Kenya can go through this transition period peacefully if there is a suspension of the ICC Investigations and proceedings into the Kenyan situation for the next 12 months (deferral) under Article 16 which can be reviewed by UN Security Council once the conditions on ground have changed.

UN Security Council as a body should be aware of the challenges that Kenyan cases have created on the ground. Deferring the case or suspending the cases for 12 months (deferral) does not mean forgetting injustice committed in Kenya. But international law under the UN Charter looks at the timing and security threats that take the fast track under Article 16 of the Rome Statute. Kenya fits this direction.