Permanent Mission of the Republic of Kenya to the United Nations

866 U.N. Plaza, Rm 304, New York, NY 10017

Statement by

H.E. Mr. Macharia Kamau

Ambassador/Permanent Representative of the Republic of Kenya

to the UN Security Council

Friday, November 15, 2013

Tel: (212) 421-4740/1, Fax: (212) 486-1985 Email: kenya@un.int

Africa came here in the belief that the Security Council was in command of its own reality and was the master of its mandate. That the Rome statute was fully operable, that article 16 was a live and actionable piece of legislation, and that the Security Council was capable of executing its singular mandate and responsibility through this article. Africa has learnt that despite the Security Council's own recognition of the recent terror attacks in Nairobi ( as well as terror threats in neighboring capitals,) as threats to international peace and security that that recognition counts for little in this council when article 16 is under consideration. Sadly, for some in this council the heartbreaking loss of lives and scores of shattered bodies at the Westgate Mall does not meet an unspecified, imaginary threshold for article 16. In fact, apparently, neither does the threat to the stability and political management of a country that would result from absented leadership in the midst of a regional war against terror, meet this imaginary threshold. Africa came to the council to seek ICC deferral for twelve months; nothing more and nothing less. This is not "political pressure" as some misguided purist activists have claimed, it's the law. Africa wanted both the spirit and the letter of the law applied; the law. Not a favor or a hand out, but application of the law. Africa wanted this because we believed that the Rome Statute is as much ours as anybody's, and its application would be without fear or favor. We were under the impression that the good global citizenry of many African states in fighting terror and promoting international peace and security would resonate and have meaning in this council.
We were wrong. The deferral has not been granted. Africa's request,

through abstaining votes cast by certain members in this Council, has been
voted down. Reason and the law have been thrown out the window. Fear

and distrust has been allowed to prevail. Africa is disappointed and we

regret this very much.

We take note that some Security Council members have chosen to tie the denial of the request from Africa to a paranoid fear of an imaginary possible future abuse of article 16 by countries; countries that have nothing to do with the prevailing matter before the Council nor anything to do with the pressing terror threats to east Africans and the need for an adjunct, sustained and uninterrupted leadership. That these are the turn of circumstances in this chamber is simply sad, absurd and confounding. It does nothing for building confidence or solidarity with this Council, especially now, at a time when the utility of this
council is under question.

It would seem that Africa should only come to the Security Council, having taking into account all the possible imaginary circumstances of abuse of the statute and or other permutations of possible negative applications that could potentially arise, and only until then can a member state contemplate an affirmative decision by this council based on article 16. Clearly this is impossible. And yet anything less and accusations of "setting a bad precedent" and "breaking seals" would fly thick and fast, accompanied by thinly veiled threats of facing the wrath of the ICC and its cabal of European ASP members and their friends. Clearly to certain council members the supposed fear of setting a precedent or treading on legal niceties, is much more important than the need to promote international solidarity, peace and security or the importance of helping maintain stability in a nation, or region, under the
threat of terror.

Indeed our understanding is now clear. The Security Council is no institutional destination for solving complex and fluid international security and political problems.

For Africa the message is that we need only stay within the African family to solve unusual and complex political and problems, working within the African Union to seek solutions for the challenges that we face. And that is just alright by us. Be that as it may and despite appearances, the security council is as much Africa's institution as it is any regions. For us it would seem that many
members of this council are struck in a time warp. Some, it seems,

perceive Africa as if it is still caught in the reality of the 1990s. A few, I dare say, as if we are still in an even earlier era. Why do I say this you might ask? Because there seems to us little if any confidence with neither Africans nor African solutions among some council members. There is little trust in our ability to understand our reality, manage our affairs and act in the best interest of our people and countries. Our engagement here has been met with derision, suspicion, impatience and even irritation. At every turn the boogie man of impunity and dictatorship is dragged out to devastating effect. This is wrong, and it is unfair, as it is sad and tragic. It is an indictment on the state of international relations at the dawn of the 21st
century.

For Africa, the Rome statute has failed this first crucial test in this Council and has done so in spectacular fashion in the full glare of the African continent. The statute is clearly deeply flawed, inoperable and inapplicable in the context of this council. Nevertheless and without prejudice to the foregoing, Kenya is grateful for the recognition given to it and its concerns, by all the member states of the African continent and their respective heads of state and government as well as the African Union Commission and its leadership. Africa's solidarity has been a watershed; it has been heartwarming and simply amazing. Kenya, like the rest of Africa, is also most appreciative of the support and direction that the deferral resolution has received from both the African
member states of the Security Council, Rwanda, Morocco and Togo, as

well as the other four members of the Security Council Russia and Pakistan and in particular Azerbaijan and China in their respective facilitative roles
as President.

In the name of Africa and in the name of the Kenyan people I would like to express my deepest gratitude to the guidance, camaraderie, solidarity and support that we have received and enjoyed as a mission and as a government in this effort from those who saw it fit to give us their support both inside and outside this Council. Kenya will not forget. Africa will not forget. For many of us our business here is done but this matter is not
closed.

Clearly, however, this council has removed itself from being part of an amicable solution and with that it has done irreparable damage to the Rome statute and its future furtherance.
Thank you.

Macharia Kamau