Thursday, September 9, 2010

Kibaki And Raila Face ICC Probe

Francis Mureithi
9 September 2010

Nairobi — President Kibaki and Prime Minister Raila Odinga are not immune from investigations by the International Criminal Court, the Star has established.

Requests for the two principals to be investigated were contained in the petitions that Kenyans made to the ICC pre-trial chamber before it gave Chief Prosecutor Luis Moreno Ocampo the go-ahead to start the probe.

"The investigation should include the two leaders of the big parties i.e. Mwai Kibaki and Raila Odinga. It should cover all the political leaders and prosperous businessmen," states part of a dossier whose evidence reference number is r/0175/10.

"The ICC should take this matter seriously in order to protect Kenyans from those greedy politicians who incited, planned, funded those violence. The ICC should make sure that those who participated, big and small, should be brought to Court of Law," says another witness whose evidence is marked as r/0209/10.

In a separate document released alongside the dossier containing the testimonies, the ICC has categorically stated that neither President Kibaki nor any minister will be exempt from the investigation and possible prosecution for the violence that followed the December 2007 disputed presidential election.

"No one is exempt from investigation or prosecution because of his or her current functions or because of the position he or she held at the time the crimes concerned were committed," the court states in a document titled "ICC's Judicial Process in Kenya".

"Acting as a head of state or government, minister, or parliamentarian does not exempt anyone from criminal responsibility before the ICC," the court adds.

The full testimonies of the victims and witnesses are however in the custody of the ICC. In the ICC dossier they are in the form of annexes.

Where witnesses directly identified and named the politicians and other suspects in the violence, Ocampo has left out the names and instead used the term "redacted" - a form of editing in which multiple source texts are combined and subjected to minor alteration to make them into a single work. Often this is a method of collecting a series of writings on a similar theme and creating a definitive and coherent charge.

"One victim identified the [REDACTED], and those financing and supporting it, as responsible for some of the violence and needing to be investigated," Ocampo's presentation to the judges reads.

The Waki report, which ICC heavily relies on, refers to two separate meetings, one at State House Nairobi and another at the Nairobi Safari Club where "political leaders in Nairobi, including key office holders at the highest level of government may have directly participated in the preparation of the attacks." Government Spokesman Alfred Mutua has however gone on record denying that there was any meeting at State House Nairobi to plan the retaliatory attacks.

The Ocampo dossier was released barely five days after the government signed 16 articles of understanding for the ICC to set up base in Kenya to help ease its investigations and track down the perpetrators of the violence.

The dossier was released by the ICC registrar Silvana Arbia's office.

Last Friday, Arbia and Foreign Affairs minister Moses Wetang'ula signed the agreement which allows the ICC to establish its offices in Kenya, protects its property and assets from any legal process and allows its staff free access, among other guarantees.

According to the dossier, out of the 396 victims and witnesses who have registered to participate in the trials, 320 are individuals while 76 are registered as communities.

Majority of collective representations are made on behalf of groups numbering between 100 and 10,000 victims. Central Province has three groups, four groups are from the Coast, 19 are from Nairobi representing small, family groups, three are from Nyanza, 37 are from Rift Valley and two are from Western Province.

Individual applications based on ethnicity indicates three were received from the Embu community, 16 were from the Kalenjin, 34 from the Kamba, 112 from the Kikuyu, ten from the Kisii, 93 from the Luhya, 18 from the Luo, nine from the Meru, two from the Mijikenda, three from the Teso, two from the Turkana communities and another 18 from mixed or unknown ethnic backgrounds.

Ocampo says in most of the instances, the victims pleaded with him to protect their identity from the government as they expressed fears their lives would be in danger.

"We need the court to be able to protect us and not expose us to the Kenyan government because we are very worried about our security if they know that we are community. We are worried that many victims may not talk or give information for fear of security operatives and other tribes," said one of the victims whose record is now with ICC.

The ages of those who submitted testimonies range from the youngest at 19 to the oldest at 76. Sixty per cent (192) of the victims are men and 128 women.

In their testimonies and petitions, the victims have asked the court to expedite its investigations and start prosecutions before the 2012 general elections.

They have also asked the ICC to ensure that the suspects relinquish any public offices they may be holding. "I would like the kingpins to be pinned down and they should not be allowed to hold public office like our current MP," said one of the witnesses.

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