The AU request for the Council to defer for a year the ICC proceedings against President Uhuru Kenyatta and Deputy President William Samoei Ruto of Kenya was discussed again by Council members under “any other business” during consultations on 11 November, and consultations on the matter were held on 12 November. A draft resolution on a deferral was put to a vote on 15 November by Morocco, Rwanda and Togo but was not adopted, with only seven Council members voting in favour and the remaining eight members abstaining.
On 31 October, Council members held an interactive dialogue with an AU high-level contact group regarding the AU request for the Council to defer for a year the ICC proceedings against President Uhuru Kenyatta and Deputy President William Samoei Ruto of Kenya. (S/2013/624). Earlier in the month, on 8 October–during the final leg of the Council’s visiting mission to Africa–Council members had met with the AU chair in Addis Ababa to discuss issues related to the ICC.
On 8 May, a note verbale from Kenya dated 2 May and requesting termination of proceedings against its nationals before the International Criminal Court was discussed under “any other business”. On 13 May, Kenya sent a follow-up letter to the President of the Council, requesting an informal interactive dialogue with Council members on the issue, which was discussed under “any other business” on 16 May. The dialogue was held with Kenyan representatives on 23 May where Council members showed no inclination to intervene in the proceedings.
On 8 April, Council members met in consultations on Kenya’s request to defer the application of the International Criminal Court jurisdiction, under Article 16 of the Rome Statute. On 23 March, Kenya had sent a letter to the president of the Security Council, requesting that the Council hold an open debate on the matter. At the 8 April the meeting, members maintained the same positions as outlined previously, i.e. that the preferable venue for that issue to be determined is before the ICC itself, by way of an application under Article 19 of the Rome Statute. Following the consultations, the President of the Council stated to the press that Council members had considered the issue fully and did not agree on the proposal. He also said that no future meetings on the issue were planned.
On 31 March, Kenya filed an application before the ICC, challenging the admissibility of the cases against its nationals, pursuant to Article 19 of the Rome Statute. On 18 March, Council members held an interactive dialogue with the permanent representative of Kenya. Kenya has been pursuing a deferral of the ICC proceedings and seeking a decision from the Council in accordance with Article 16 of the Rome Statute. At the end of the meeting, the AU representative expressed the hope that the Council would discuss the issue in informal consultations.
On 31 January, the Assembly of the AU decided to support and endorse Kenya’s position, and requested the African members on the Security Council to place the issue on the Council’s agenda (Assembly/AU/Dec.334(XVI).
On 31 March, Pre-trial Chamber II of the Court issued its decision authorising the prosecutor to commence an investigation into the situation in Kenya in relation to crimes against humanity within the jurisdiction of the Court committed between 1 June 2005 (the day on which Kenya became a party to the Rome Statute, following its ratification of the Rome Statute) and 26 November 2009 (the day the prosecutor’s request was filed).
On 5 November, the prosecutor of the ICC notified the president of the Court of his intention to begin a process for an investigation into the situation in Kenya pursuant to article 15(3) of the Rome Statute, which allows the Prosecutor to commence an investigation on his or her own initiative.
On 5 March, the Council heard a Secretariat briefing on Kenya.
On 28 February a power-sharing agreement was signed between the Party of National Unity of President Mwai Kibaki and the Orange Democratic Movement of opposition leader and former presidential contestant Raila Odinga. On 25 February, the Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator briefed the Council on the humanitarian situation in Kenya and regional implications. On 6 February the Council adopted a presidential statement which emphasised the need for dialogue, compromise and action to end to the violence by Kenya’s political leaders; recalled the need to avoid impunity; welcomed the decisions by the High Commissioner for Human Rights and the Secretary-General’s Special Advisor on the Prevention of Genocide to dispatch missions to Kenya; and requested the Secretary-General to report on UN support to the mediation and the regional impact of the Kenyan crisis, including on UN operations. Meanwhile, the AU Assembly adopted a decision calling for an investigation into human rights violations and urged the parties to commit to a peaceful solution in conformity with rule of law.
On 30 January the Council was briefed by the Under Secretary-General B. Lynn Pascoe. He presented an overview of the political, security and humanitarian situation, noting that the Secretariat had been providing support to the mediation team. After a Belgian proposal, Council members agreed on an oral press statement on calling “on Kenya’s leaders to do all that is in their power to bring the violence to an end and to restore calm.” On 29 January the Kenyan Foreign Minister asked to brief the Council. Members appeared divided on the issue. Some saw a need to hear a counterview. Others were uncomfortable with denying a request from a government. On 10 January, talks broke down. The parties then agreed to mediation by an AU-backed panel of African eminent persons led by former the Secretary-General.
Presidential, parliamentary and local elections were held in Kenya on 27 December. A political, security and humanitarian crisis ensued. On 30 December the electoral commission announced Kibaki as the winner. Demonstrations and ehtnically-motivated violence ensued, reportedly from supporters of both the government and opposition sides targeting civilians.