OCAMPO'S 1ST STOP

The International Criminal Court Chief Prosecutor Luis Moreno-Ocampo makes his first contact with Government on Monday as he prepares to investigate the violence that followed the 2007 General Election.

The ICC Chief Prosecutor first meets the two men who headed the security forces at the time. His second stop is a meeting with a Cabinet committee appointed to deal with issues relating to the ICC. He will be seeking their co-operation in probing the events that led to the deaths of more than 1,200 people and displaced hundreds of thousands.
International Criminal Court Chief Prosecutor Luis Moreno-Ocampo


Major General Hussein Ali, who headed the Police force during the period, and Administration Police Commandant Kinuthia Mbugua have received letters informing them about a meeting scheduled for Monday at a Nairobi hotel.

Ali and Mbugua were in charge of the forces that quelled the rioting after the disputed 2007 elections. The Waki Commission inquiring into the crisis blamed most of the more than 1,200 deaths on trigger-happy police officers. Ali and Mbugua will also be expected to shed light on extra-judicial killings in Mt Elgon, which is also part of the mandate of the ICC investigations.

While Kenya Army soldiers were deployed to help police in Mt Elgon and during the post-election violence, it is not known whether the prosecutor intends to meet military officers.

Moreno-Ocampo’s meeting with the ministers, meant to secure Government’s co-operation, comes amid signs of divisions between those who will meet him. At the weekend, there were reports of a disagreement between PNU and ODM ministers with the latter allegedly scuttling a last-minute attempt to block his visit.

A section of Government is believed to be trying to leverage an upcoming performance appraisal on the ICC to force a political compromise from the prosecutor. The first-ever meeting to discuss changes to the Rome Statute will be held in Uganda from May 31 to June 11.

The Review Conference will consider amendments to the treaty as well as take stock of the ICC’s performance so far.

Critics of the eight-year-old court have accused it of "accommodating itself to political power" both outside and within Africa. Questions are raised about selective prosecution of African cases and even deals with African governments on who to target. There have also been calls for a new Chief Prosecutor from those unhappy with Moreno-Ocampo. The failed plot to stop Moreno-Ocampo and talk of an African Union-led assault on the ICC in Kampala may be intended to pressure the prosecutor into making political accommodations.

Moreno-Ocampo has said that he will collect evidence on two cases from scratch and will not rely on what was handed over to him by Dr Kofi Annan from the Waki Commission.

Moreno-Ocampo met some members of the public in Nairobi on Sunday to explain the Court’s process and exhort those with crucial information to come forward. The meeting, which was organised secretly, was attended by invitation only and was not covered by the press. However, recordings of the proceedings were made available to television stations and were beamed to Kenyans on Sunday night. The Argentine prosecutor has indicated he will by November nail "two or three" individuals bearing greatest criminal responsibility for the post-poll chaos.

On Sunday, Lands minister James Orengo confirmed that the Cabinet committee on the ICC would meet with the prosecutor. Its members include Prof George Saitoti (Internal Security), Mr Mutula Kilonzo (Justice), Mr Jeffa Kingi (East Africa Community) and Attorney General Amos Wako. Mutula says he will not attend as he is at a United Nations conference in Geneva "but my colleagues will carry on".

At the meeting, Moreno-Ocampo will seek assurance that the Government will protect victims and potential witnesses amid growing concerns they are being hounded. He has already cited that those who gave testimony to the Waki Commission and the Kenya National Commission on Human Rights, upon whose evidence he obtained authorisation from the Pre-Trial Chamber, need protection.

He says it is the Government’s duty to protect such witnesses.

Other forms of co-operation the Government could be requested to accord the ICC include identifying and revealing the whereabouts of persons to be interviewed or the location of items, production of official records, the protection of victims, facilitating exhumations and the preservation of evidence.

ICC investigators will comb areas where murder, rape and mass eviction of people — violations the prosecutor said constitute crimes against humanity — are alleged to have been committed. Once sufficient evidence against the suspects is collected, Moreno-Ocampo will request the Judges of the Pre Trial Chamber to either issue summons or warrants of arrest.

The plot by a section of Government to exploit a provision in the Rome Statute to have the ICC suspend its investigation is likely to feature in the talks. Article 18 of the Rome Statute stipulates that the Prosecutor upon receiving the nod from ICC judges shall notify all States Parties in confidence of an impending investigation.

It adds within one month of receipt of that notification, the affected State may inform the Court it is investigating or has investigated suspects, essentially urging the international body to suspend its intervention.

"At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorise the investigation," states the Statute.

Energy minister Kiraitu Murungi, who is secretary general of PNU said: "We cannot stop Ocampo now. From a criminal law perspective, every Kenyan is innocent until proved guilty by the ICC process."

He added: "As a party we cannot support impunity. Anybody found to have committed offences would have to carry their own cross."

He, however, expressed fears that Kenyans had too many expectations of Moreno-Ocampo and have surrendered all to him.

"The problems we have are caused by underlying problems, which must be addressed. It is a tragedy that we failed to create a local tribunal. This has opened Kenyan to unnecessary international scrutiny," Kiraitu said. He said Kenyans must resolve to fight impunity and implement Agenda Four reforms to cushion against recurrence of violence and resolve intercommunity animosity. The minister said the UK elections must serve as a lesson for Kenyan leaders.

"Party leaders are meeting to discuss how to resolve national issues in a hung parliament. Here, we would have sorted ourselves out physically."

Kiraitu assured Kenyans that those found innocent by ICC would not be affected by the outcome.

Mutula was quoted in local media saying Moreno-Ocampo served the confidential notice on all 130-member states on April 9, meaning the Government had until the weekend to block the ICC. This could explain the last-ditch efforts by a section of the sub-committee to author a petition to The Hague — a move that, however, collapsed because some members were hostile to the idea seen as conflicting with the official Government position to co-operate with ICC.

A May 6 letter by Orengo leaked to the Press protested that ODM-allied ministers were not privy to a meeting where the plot to block Moreno-Ocampo was hatched. Orengo’s letter, copied to members of the Cabinet committee, takes issue with the perceived PNU move that "would seriously undermine the Government’s authority and integrity".