OCAMPO AND NARA

Last-ditch efforts to stop ICC prosecutor Luis Moreno-Ocampo from opening investigations into Kenya’s post-election violence failed after bitter disagreements between ODM and PNU ministers.

A harsh letter by Lands minister James Orengo to the chairman of a Cabinet sub-committee dealing with the ICC matter, Prof George Saitoti, forced the government to drop attempts to block Mr Moreno-Ocampo’s visit which began on Saturday.

With that, the government lost the last opportunity to stop ICC investigations into the violence that rocked the country at the dawn of 2008.

Government officials had until Saturday to write to the ICC pledging to open investigations and prosecute those responsible for the violence that led to the death of 1,300 people and the displacement of over 300,000.

Had the government written the letter, the ICC law requires that it would have had to furnish the court with evidence of concrete steps it was taking to investigate crimes committed during the violence in a way that meets international standards.

In a letter dated May 6, 2010 and addressed to Prof Saitoti, ministers Mutula Kilonzo and Amason Kingi and Attorney- General Amos Wako, Mr Orengo warned the PNU wing of the government that Prime Minister Raila Odinga and ODM would reject any letter stopping the ICC chief prosecutor from proceeding with investigations aimed at nailing those suspected of bearing the greatest responsibility for the post-election violence.

“A section of the coalition cannot purport to make a decision of that magnitude without the full involvement and consent of both coalition partners. This is a matter that relates directly to the operation of the National Accord. Unless both sides of the coalition agree on this matter, there cannot be a government position. Any factional or sectarian decision, with tremendous respect, is therefore null and void,” Mr Orengo warned.

The Lands minister further warned that it would be unacceptable if the PNU wing of the government sought legal advice or engaged lawyers to block the ICC investigations.

“By this correspondence and subject to contrary information and advice from any relevant or implementing authority, I am formally objecting to the decision made by a section of the government without the full participation or involvement of the ODM members of the committee,” Mr Orengo wrote.

The minister wrote the letter after the PNU members of the Cabinet sub-committee skipped a scheduled meeting at Harambee House and instead went to State House where they allegedly deliberated on ways to block Mr Moreno-Ocampo’s visit — and a decision taken to have the ICC investigations deferred.

As a result of Mr Orengo’s protest, the sub-committee convened a meeting on Friday during which it was agreed that Mr Moreno-Ocampo proceed with his visit.

By attempting to block the ICC prosecutor’s visit and starting its own investigations, the government was exploiting a window provided by the Rome Statute — the international law that governs the ICC — that member states can investigate and prosecute crimes against humanity committed in their jurisdiction as long as they conform to acceptable international standards.

The window closed at midnight last night, giving Mr Moreno-Ocampo his latest go-ahead. “I can confirm that the confidential notice was served on all 130-member states on April 9, and it expires May 8 (Saturday),” Mr Kilonzo, the Justice minister, told the Sunday Nation from Geneva.

The Rome Statute allows countries under investigation by the ICC prosecutor to invite investigations from another member country subject to permission by the judges.

Article 18 of the Rome Statute provides that after the ICC judges give a go-ahead to investigators, the prosecutor shall notify all states that are signatories.

Within one month, a State may inform the Court that it is investigating nationals or others within its jurisdiction.

Mr Moreno-Ocampo wrote to the government stating his intentions to begin investigations after ICC judges granted him permission on March 30, 2010.

“Instead of panicking, the best thing would have been to set up a local judicial mechanism or give a clear, firm irreversible commitment that that will be done and to the extent that has not been done, the remaining work is for Prof (George) Saitoti and the AG,” said Mr Kilonzo in reference to the cooperation the ICC investigators expect from Kenyans.

“Cooperating is not a favour to ICC. It’s not like we’re advancing the ICC something that they don’t deserve. Kenya’s law requires us to cooperate with the ICC. We have a legal obligation to advance cooperation to the ICC,” said the minister.

“One of the things we can’t do is obstruct the ICC. We cannot postpone the work of the ICC. Ocampo is not acting on his own but on a court decision.”

In his application on November 26 last year, Mr Moreno-Ocampo said that the violence was elaborately planned and executed.

The prime suspects in his crosshairs include businessmen, politicians as well as the security forces.

The prime suspects are accused of hiring, financing and moving gangs to kill, destroy and block roads.

“Many of the political leaders from both sides that incited the attacks are also rich businessmen or land owners and contributed financially to attacks from their own resources,” he said in his submission.

In his application, Mr Moreno-Ocampo indicated he would narrow investigations to two incidents;the attack at Kiambaa Church in Eldoret in which 17 people were burnt alive and the attack in Naivasha on January 27, 2008, where 13 people were killed.

International community

The violence, which lasted close to two months, was only stopped after the international community intervened through former UN secretary-general Kofi Annan.

The ICC’s involvement came last year after a divided Parliament failed to set up a local tribunal.On November 5 last year, Mr Moreno-Ocampo visited Kenya with the intention of getting a referral from the government.

However, a meeting between him and top government officials did not bear fruit.

The prosecutor has promised to conduct a “quick, robust, independent and impartial investigation” which he hopes to conclude by the end of the year and place his case before the judges.