Friday, December 24, 2010

The Hague: Ocampo works on despite politics

Related StoriesBy Standard Team
Behind his unassuming desk at The Hague, International Criminal Court prosecutor Luis Moreno-Ocampo is fine-tuning evidence he hopes will see six Kenyans, three of them leading politicians, face trial over the 2007-2008 post-election violence.
Analysts say events over the days since he stunned the country by naming confidants of President Kibaki and Prime Minister Raila Odinga as key suspects over the violence, may have convinced him more than ever that impunity is deep-rooted in Kenya’s politics.
Even worse, there is now real danger that politicisation of the ICC investigations could deepen ethnic rivalries, as supporters of the ‘Ocampo Six’ call rallies to raise funds and rail against The Hague. MPs believe they have scored a victory, however pyrrhic, over the much-maligned prosecutor from Argentina, after Parliament passed a Motion on Wednesday, calling for Kenya to dump the Rome Statute that created the ICC.
President Kibaki and Prime Minister Raila Odinga are on record having promised to co-operate with the International Criminal Court. It remains to be seen how the principals will react to MPs’ passing of a Motion to remove Kenya from the ICC. [PHOTO: file/STANDARD]

A country can withdraw from an international treaty citing fundamental change of circumstances under Article 62 of the Vienna Convention. The only way to justify such action would be for the Government to establish a local judicial process devoid of political manipulation.
MPs found common ground on Wednesday, after Moreno-Ocampo spread blame almost equally between the parties in the ruling coalition for the chaos that left 1,200 people dead and 650,000 displaced.
In reality, however, the events in Parliament have changed nothing as far as the fates of the ‘Ocampo Six’ go. The MPs will undoubtedly put more pressure on President Kibaki to write to the United Nations, informing it of his Government’s intention to renounce the Rome treaty.
But any such action will not end the investigation of the six suspects named by the ICC prosecutor, and should the judges of The Hague’s Pre-Trial Chamber II issue summons for them to appear, Kenya is obligated to co-operate because the charges are criminal in nature.
President Kibaki can decide to ignore the Motion, but must be ready to face the wrath of MPs who were nearly unanimous in their support.
Parliament’s committee on delegated legislation headed by Nominated MP Amina Abdalla is ready to take the Executive to task should it ignore the wishes of most MPs.
Indications are that Kibaki is likely to placate the MPs, given the fact that ministers close to him supported the Motion.
Energy Minister Kiraitu Murungi, one of Kibaki’s strongest allies, led in supporting the Motion on Wednesday night, as did the Vice-President and Leader of Government Business Kalonzo Musyoka. The VP even called the Motion "Government business".
Two of those under the radar of ICC prosecutor Luis Moreno-Ocampo are close to Kibaki. They are Head of the Civil Service and Secretary to the Cabinet Francis Muthaura.
Also named is Deputy Prime Minister Uhuru Kenyatta, regarded by power brokers in Kibaki’s PNU as the presidential candidate in 2012.
Analysts feel that as the ‘engine’ of Government, nothing will stop Muthaura, who has played a role in the preparatory work for the establishment of the ICC when he was Kenya’s permanent representative to the UN, from convincing the top echelons of Government to withdraw from the Rome Statute.
The ball is now in the court of the two principals. But Attorney General Amos Wako says the vote by MPs does not bind the Government.
Condemnation of the MPs’ action has also come from a US-based Kenyan law expert who told Voice of America (VOA) the decision was ridiculous and would make Kenya a pariah State if Kibaki followed through with writing to UN Secretary General Ban-ki Moon.
Joab Okello, administrative judge for the US State of New York, also asked Kenyans to protest the decision by the legislators.
"I was outraged by that move because Kenya cannot afford to be a pariah state. We are one of the most important countries in Africa, and we’ve maintained that for years. And, for Parliament to pass this Motion, just because six people have been indicted, is outrageous," he said.
"The six individual must still answer to the ICC. What they are trying to do is protect these people so that they are not arrested. So, that means the ICC can only arrest the individuals if they leave the country. But, if Kenya was a signatory, (to the ICC), then Kenya would have to arrest them if needed."
Meanwhile, Prime Minister Raila Odinga runs the risk of being seen to be playing to both sides of the political gallery. While members of his ODM party supported the Motion and earlier expressed its willingness to raise funds to pay legal fees for party chairman Henry Kosgey, one of the ‘Ocampo Six’, Raila told a local television station the Government does not wish to pull out of ICC.
Also keen to play down Parliament’s action, Wako said the passing of the Motion does not necessarily bind the Government to withdraw from the ICC.
Bind Government
"Parliament was merely expressing its feelings on the matter. They don’t necessary bind the Government," Wako told The Standard.
Wako further noted that even if the Government agrees with the decision made by Parliament, they have to give a one-year notice to the United Nations.
This means that withdrawal from the ICC at this stage would not stop the case against the six individuals from proceeding.
British High Commissioner Rob Macaire said: "There are 114 states who are parties to the ICC. Kenya would be the first country to walk away from it. For those countries who have supported since the outset the creation of an international court to get justice for victims of mass crimes, any country walking away from its treaty obligations, or ending co-operation, would be making a clear statement in support of impunity."
He added, ‘‘It is worth remembering that this is a truly international body, and the biggest block of countries calling for its creation was African. The losers if a country like Kenya walks away are the victims — both past victims who would not get justice, and future victims because the perpetrators of violence would not be deterred."
Civil society leaders have also criticised MPs for passing the Motion. Hassan Omar of the Kenya National Human Rights Commission said the move was a clear case of MPs frustrating the fight against impunity, and dashing the hopes of victims of post-poll violence to get justice.
"The MPs who supported the Motion have clearly shown they do not like accountability, and they have taken the country many steps back in the fight against impunity," he said.
He said even if Kenya withdraws from the ICC, the case against the six will still be on.

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