Draft letter to ICC was not adopted

Whereas the 22nd AU Summit in January remained focused in general on food security with repeated concerns over peace and security crisis in Mali, South Sudan, Central African Republic and the Democratic Republic of Congo with little to no mention of Kenya on the floor of the General Assembly; in November the extraordinary AU Summit was like an excerpt from the film “The gods must be crazy.”

The sort of rage spewed forth in the extraordinary session of the AU in November would have made one truly believe that the AU was completely at war with the ICC.  Admittedly, the language used in the speeches was dripping with contempt, raw anger and vitriol. That event can be best described as the wailing stage in AU/ICC political drama. Perhaps the speech writers should consider psychotherapy to deal with their emotional issues.

 The 22^nd Summit of AU session in January, however, was quite different in nuance and temperament. Despite the absence of focus on Kenya in the inaugural session, behind the scenes some truly interesting diplomatic antics were going on. Out of sheer irritation I am sure, officials at some embassies alluded to a last minute attempt to introduce a letter to the floor of the assembly. Irritation that was undeniable; for too long Kenya has had this “African” timing sort of approach to making requests; last minute, forcefully and haphazardly.

Nevertheless, it is nearly impossible to trace exactly who wrote this letter, so we can call it “the letter that government never wrote,” or as Njonjo Mue, Human Rights lawyer and expert on transitional justice calls it – The Un-Letter.

Seeing as the un-letter not only ruffled a few feathers but also irked entire countries, it’s important to scheme through its contents.

First of all the un-letter is purportedly from the AU “We the members of the African Union” and is addressed to the President of the ICC, Justice Sang Hyung Song. The drafters of this un-letter seem to be from the fraternity of psychologically challenged characters as those who penned the rabid speeches of certain Heads of State at the extraordinary AU assembly. For the record, a political body has no business whatsoever writing to judges. Judges simply try cases; they don’t deal with wailing political cry babies.

Secondly, the writer of the letter had the temerity to postulate arguments on behalf of the defense team of the accused directly to the president of the ICC. It’s obvious that if this writer indeed had reasonable or sound arguments the accused would have hired him/her as his lawyer. As it is, the sort of thinking presented in the un-letter proved beyond doubt that the writer is only competent enough to regurgitate legally unsound hypothesis based on political propaganda which they claimed were “astonishing breaches of basic principles of criminal courts in general and more specifically the ICC itself.”

I wonder how this person came to such a conclusion while at the same time not realizing that he should not be writing to a Judge. And that’s not all; the un-letter was filled with grammatical errors not to mention confusion when it comes to legal applications and jurisdiction of the Office of the Prosecutor and the International Criminal Court.

As if this hilarious document and its existence could not get any stranger, the moment it surfaces it is shared with the disclaimer that it is not a final copy nor was this letter adopted by the assembly. Along come some journalists, with all the defunct intelligence in the world and they publish this draft – the Un-Letter - claiming that this is the AU position!

I wonder what goes on in an editor’s mind when he comes across something so questionable and he doesn’t even pick up the phone to call to confirm the source and substance. What is even more amusing is that the media house in question did not even send a reporter to the AU summit.

Maybe this is a Kenyan thing, because the last time a similar badly constituted, legally unsound document filled with grammatical errors turned up, Kenya wrote a letter to the UNSC through its former permanent representative to the UN, Amb. Macharia Kamau, demanding that now that the accused are heads of government the UN terminate the cases at the ICC.

The fact that it was written through a representative who indeed should know the limits of the UNSC is telling of the Kenyan malaise. The UNSC of course ignored the letter because it cannot tell the ICC to terminate cases.

If our letter and speech writing is anything to go by, then it’s no wonder we are the brunt of disparaging jokes. I am sure the international community is just tickled pink anytime they open diplomatic mail from Kenya; Lord knows what sort of correspondence they receive. We keep writing to the wrong people and telling them strange things.