Your Excellency,

RE: THE GOVERNMENT OF KENYA’S UNWILLINGNESS TO INVESTIGATE AND PROSECUTE CRIMES ARISING FROM THE 2007/08 POST ELECTION VIOLENCE IN KENYA

The undersigned organisations, send you compliments on the eve of the Extraordinary Session of the African Union Assembly (AU), and we would like in this regard to raise the following issues:

We recall that the AU, on the instigation of Kenya and Mauritania, is convening this session for considering the implementation of Decision Assembly/AU/Dec.482 (XXI) that was adopted in May 2013. That decision, noted, inter alia:

6. RECALLS that, pursuant to the principle of complementarity enshrined in the Rome Statute of the ICC, Kenya has primary jurisdiction over the investigations and prosecutions of crimes in relation to the 2007 post-election violence, in this regard, DEEPLY REGRETS the Decisions of the Pre-trial Chamber II and the appeals Chamber of the ICC on the admissibility of the cases dated 30 May and 30 August 2011 respectively, which denied the right of Kenya to prosecute and try alleged perpetrators of crimes committed on its territory in relation to the 2007 post-election violence;

7. SUPPORTS AND ENDORSES the Eastern Africa Region’s request for a referral of the ICC investigations and prosecutions in relation to the 2007 post-election violence in Kenya, in line with the principle of complementarity, to allow for a National Mechanism to investigate and prosecute the cases under a reformed Judiciary provided for in the new constitutional dispensation, in support of the on-going peace building and national reconciliation processes, in order to prevent the resumption of conflict and violence in Kenya;

8. REQUESTS the African Union Commission, in collaboration with the African Union Commission on International Law (AUCIL), to organize, with the participation of Member States, all the relevant Organs of the African Union and other relevant Stakeholders, a brainstorming session, as part of the 50th Anniversary discussion on the broad areas of International Criminal Justice System, Peace, Justice and Reconciliation as well as the impact/actions of the ICC in Africa, in order not only to inform the ICC process, but also to seek ways of strengthening African mechanisms to deal with African challenges and problems.

We would like to bring to your attention the realities in Kenya, where we have been actively working in relation to the post-election violence of 2007-2008 (PEV).

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