Mr Cuno Tarfusser is one of the Pre-Trial Chamber II judges handling the Kenya case at the Hague. Photo/FILE
By BERNARD NAMUNANE bnamunane@ke.nationmedia.comPosted Thursday, December 16 2010 at 22:33
Politicians have started exploring options to the justice dispensed at The Hague.
The first attempt was by Chepalungu MP Isaac Ruto who urged the government to withdraw from the Rome Statute that established the International Criminal Court, just like the US did in 2002.
Article 127 of the Rome Statute says a member state can withdraw from the ICC by writing to the United Nations secretary general. The withdrawal takes effect after a year.
This, however, does not mean that the ICC will stop investigations or discharge the party from its obligations.
“A state shall not be discharged, by reason of its withdrawal, from the obligations arising from the Statute while it was a Party to the Statute.
“Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective”.
The second option is for the government to put in place a special tribunal to try the suspects. Going by the mood of the MPs on Thursday, this could be the correct moment for Justice and Constitutional Affairs minister Mutula Kilonzo to table the two tribunal Bills.
Mr Kilonzo can, alternatively, ask Chief Justice Evans Gicheru to form a special court at the High Court with the express task of trying those responsible for the chaos.
However, the special tribunal and special court must meet the threshold that is stipulated in the International Crimes Act such as inclusion of foreign judges, prosecutors and registrar.
With either of these courts in place, the government can go before the Pre-Trial Chambers before the summons are issued and argue that it has put in place courts to try suspects.
Said Mr Fadi El Abdallah, the ICC associate legal outreach officer:
“If a challenge to the admissibility is raised, based on the existence or the future existence of national justice capable and willing to prosecute the same people for the same alleged crimes, it would be for the judges of the ICC to decide whether or not to accept this challenge.”
The third option, which has been exercised by Sudan President Omar Al-Bashir, is to refuse to cooperate with the ICC. It can also decline to arrest the suspects even after arrest warrants have been issued.
This, however, means the suspects don’t travel abroad lest they are arrested by ICC friendly countries.
The last option is to ask the UN Security Council to suspend the process of trying the six individuals for no more than the 12 months if there are clear signs of threats to peace and aggression.
Again, the government must prove the existence of those circumstances.
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