KALONZO'S MIRACLE

By MAKAU MUTUA

This is uncharted territory and anybody could be caught in its dragnet. If that happens, then Kalonzo Musyoka will be the next president.

There is an unspoken assumption that the International Criminal Court will not investigate – or indict – Prime Minister Raila Odinga and President Mwai Kibaki. I do not have any inside information, but I would advise that such an assumption could be both legally and factually wrong.

Those who know anything about criminal investigations know enough to know that no one knows where the evidence will lead you.

Fair and thorough investigations could lead a prosecutor to any target, no matter how high or mighty. The indictment of President Omar al-Bashir of Sudan is enough evidence to dispel the notion that anyone is above ICC law.

Mr Luis Moreno-Ocampo, the ICC Prosecutor, had to proceed proprio motu – of his own volition – because Mr Odinga and Mr Kibaki failed to refer Kenya to him for investigations.

Mr Moreno-Ocampo visited Kenya hoping to bag a referral, but returned empty-handed because the two “principals” were politically queasy about sanctioning investigations against key coalition partners.

Perhaps they hoped that Mr Moreno-Ocampo would be discouraged and not act on his own. They were wrong, and now the chickens have come home to roost. The only question is how wide Mr Moreno-Ocampo will cast the net, and whether the two “principals” will be spared.

The ICC statute explicitly provides in Article 27 that no one shall be exempted from criminal responsibility from crimes against humanity and other egregious offences on account of their official capacity even as Head of State or Government. This means that President Kibaki could be a target.

Article 28 provides that military commanders and other superiors are criminally liable for acts of commission or omission. Thus a commander or superior shall be liable for crimes committed by forces or persons under his effective control, or as a result of the failure to exercise effective and proper control.

This is the case where the commander or superior knew, or should have known, that such crimes could be committed and failed to take steps to prevent them.

Let’s think about President Kibaki, and whether he could be culpable. What did President Kibaki know, and when did he know it? Is it true, as some media have reported, that the NSIS warned the government – and perhaps Mr Kibaki – that some elements within and outside government were planning violence and retaliatory attacks if the election results came out a certain way?

If so, what did President Kibaki and the government do to prevent, or disrupt such attacks? Were, in fact, some of those attacks planned by security forces?

If so, was President Kibaki aware of such plans? Did he take steps to thwart them? As the attacks unfolded, did President Kibaki use his authority and control of the military and security apparatus to stop them?

I raise these questions not because I know what President Kibaki knew or did, but to debunk the notion that the ICC would automatically look past him in its investigations.

There have been media reports that some of the attacks by non-state actors – such as Mungiki – against PNU opponents may have been planned with the knowledge of the government.

Was President Kibaki aware of such plans? If so, what did he do? These are not trivial questions. It is likely that a high ranking official indicted by Mr Moreno-Ocampo could implicate higher-ups in government.

That’s why, if I was Mr Kibaki, I would instruct my lawyers to look into any probability – or possibility – that I could be a target of investigation by the ICC.

Mr Odinga should not think that he is out of the woods either. Several reports, including the one by Mr Justice Philip Waki, have found that ODM supporters in the Rift Valley organised and carried out heinous attacks against PNU supporters.

Many observers seem to believe that there is strong evidence linking senior ODM officials to the attacks. The question for Mr Odinga is what he knew, when he knew it, and what he did. Was he briefed on the planning of the attacks? If so, what role did he play?

If not, did he order that the attacks be stopped once he knew of them? Would senior ODM officials from the Rift Valley implicate Mr Odinga in the attacks should the ICC indict them?

Some senior politicians on both sides – ODM and PNU – have argued that the attacks were carried out on behalf of Mr Kibaki and Mr Odinga. It’s not clear whether such statements are an admission that the “principals” knew of the attacks, or somehow helped plan them.

Suffice it to note that under ICC law both the planners and the “principals” would be culpable for crimes against humanity. It is not a defence to say that one carried out the attacks on behalf of a superior, or under superior orders.

Under ICC law, orders to commit crimes against humanity are “manifestly unlawful”. Like Mr Kibaki, Mr Odinga should talk to his lawyers and prepare for any eventuality. The ICC is uncharted territory – anybody could be caught in its dragnet.

Makau Mutua is Dean and Suny Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission.