Monday, May 31, 2010


State parties to the Rome Statute are converging in Kampala for discussions on sharpening International Criminal Court’s teeth but there are signs Kenya’s Grand Coalition is divided on what message to take there.

It is believed President Kibaki’s wing of the coalition could be keen on asking for deferral of ICC’s investigations on Kenya’s post-election violence suspects while Prime Minister Raila Odinga’s side wants action now.
Silent war in Grand Coalition over common stand at summit on Hague trials; Kibaki team said to favour delay of Kenya’s case but Raila group says no way.

The Kenyan delegation leaves this morning for the Uganda capital to take part in ICC’s performance review eight years after it became operational. It will be opened today by UN Secretary General Ban Ki-moon who last week said ICC had proved it was more than a ‘Paper Tiger’.

It emerged Kenya will support a provision that allows countries to defer prosecution of individuals for at least one year "in the interest of peace." This is according to a draft report seen by The Standard.

Presenting Kenya’s position on various aspects of ICC’s operations, the mission will argue that prosecution of perpetrators of crimes covered by the ICC may threaten efforts toward peace and reconciliation.

Kenya, one of the few of countries under ICC’s radar, will also defend itself against accusations it was unwilling to bring perpetrators of violence to justice, arguing the setting up of a special tribunal was not the only way to pursue those who orchestrated post-election violence.

Perils of impunity

Efforts to set up a tribunal were shot down by Parliament last year, setting the stage for the ICC to intervene and start investigations aiming to pin down those who bear greatest responsibility for the mayhem in which more than 1,300 people died.

ICC Chief Prosecutor Luis Moreno-Ocampo who vowed he would make Kenya an example to the world on the perils of impunity is working on a timetable that could see prosecutions begin early 2012, Kenya’s election year. He argues that speed was important so as to break the circle of violence before or after every election.

The divisions within Kenya’s mission arose after the Raila’s office reportedly objected to its exclusion in deliberations that worked out Kenya’s position to be presented at the conference.

Moon is scheduled to officially open the meeting today in Kampala. The conference, called to review the successes and failures of the ICC in the eight years it has operated, closes on June 11.

Kenya’s report was prepared following deliberations by an inter-ministerial team comprising teams from State Law Office, the Ministries of Justice, Foreign Affairs and Defence and an expert from University of Nairobi.

However, sources said the ODM side of Government headed by Raila, feels the process was in the hands of PNU anti-reformists. "ODM has now muscled its way into the process. It was felt that the position held by those involved in the deliberations was not representative of Government," said the source, who asked not to be named due to sensitivity of the matter.

Consequently, Lands Minister James Orengo, the PM’s advisor on coalition matters Mr Miguna Miguna as well as Mr Mutaha Kangu have now been included in the list of 15 officials who leave for Kampala this morning. The others in the delegation include Justice minister Mutula Kilonzo and Attorney General Amos Wako.

"My duty is to ensure Kenya does not shift its position or ask for deferral from the ICC. Given the position of the President and the Prime Minister who support ICC, it will be ridiculous and undiplomatic for our country to ask for a deferral,’’ said Orengo when reached for comment last evening.

He added: "In any case the period within which one may ask for deferral expired on May 8. There should be no shift because Kenya failed to institute proceedings within its judicial system."

The report seen by The Standard was prepared by Mr Patrick Okoth, Ms Alice Ondieki and Rhoda Ogoma from the State Law Office, and Ms Emily Chweya, William Hiribae and Captain D. Odeny from the ministries of Justice, Foreign Affairs and Defence respectively. Dr Kiarie Mwaura from University of Nairobi was also in the team.

In supporting delay in prosecution of chaos perpetrators, the report urges an "integrated approach" that should balance between the need for justice and restoration of peace. "In a country like Kenya which is slowly recovering from a conflict situation, justice and peace are intricately connected," says the report.

Truth commission

"In cases where it is considered that prosecutions would be prejudicial to peace and security of states or the region as a whole, African states should seek to take advantage of the provisions of Article 16, where the Security Council may defer… investigation or prosecution for a year."

Interestingly, local politicians opposed to the prosecutions of the perpetrators by ICC have argued it would open old wounds and the country could erupt in renewed violence. However, the ICC is going ahead with investigations from which, Ocampo has said, Kenyans should expect arrests in six months.

In Kampala, the country will also outline several measures it has taken to ensure justice for victims, and restore peace. It cites the setting up of a Truth, Justice and Reconciliation Commission, National Cohesion and Integration Commission, Interim Independent Electoral Commission, Independent Electoral Commission and push for a new constitution.

In fending off blame over its commitment to co-operate with the ICC, the report says the country has signed witness relocation agreements, and has also enacted a Witness Protection Unit.

But others are questioning the Government’s sincerity in advancing in the report arguments it already has enough mechanisms for ensuring justice, which include the High Court. This comes at a time when many have expressed dismay at the apparent partisan stance of the High Court, which is being accused of standing in the way of reforms.

Criticism of the court heightened last week when three judges ruled Kadhi Courts were unconstitutional, a decision many say is meant to sway public opinion to reject the draft constitution.

In a letter to the Wako regarding the report, the Kenya chapter of International Commission of Jurists criticises the Government, saying it does not seem to take a clear stand on the issues to be handled in Kampala.

As a country whose citizens are under investigation by the ICC, Kenya should take a leadership position on matters regarding how the court operates. ICJ says the establishment of the various commissions does not display any commitment to justice and asks that the report should itemise concrete steps that will be taken to ensure justice.

It argues Kenya has failed to show it was complementing ICC’s efforts, as there has not been any meaningful investigations or prosecutions. Indeed, it notes that the ICC investigators stepped in when the government failed to take action against perpetrators.

divided house

"The few prosecutions that were attempted against low level perpetrators were regarded by the court that adjudicated on the matter as incompetent and shoddy," says the letter signed by ICJ executive director, Mr George Kegoro.

"They in fact failed to target those in high office who may have had a hand in the resulting violence of December 2007 and January 2008."

However, the Government was being urged to put its house in order, end the divisions and make good use of the meeting by presenting a common stand that will show it has learnt a lesson from the violence. "It is wrong to attend the meeting as a divided house," said Mr Ndung’u Wainaina, director of International Institute for Policy and Conflict.

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