Saturday, December 18, 2010

Why Ocampo spared the two principals

By JUMA KWAYERAThe ongoing international mediation in Kenya and prospects of creating a Sudan-like situation may have determined the list of six poll chaos suspects.
Just hours after ICC Chief Prosecutor Luis Moreno-Ocampo released the names of the suspects he wants nailed for the crimes of rape, arson and murder during Kenya’s darkest hour, questions emerged why the President and Prime Minister were not on the list.
As the dust kicked up by the list settles, legal and political analysts point to a possibility of a campaign waged by the African Union (AU) being instrumental in leaving out the chief protagonists in the bungled 2007 presidential election.
A section of the public believes the two principals bear the greatest responsibility for the skirmishes.
In its findings, the Commission on Post-Election Violence chaired by Justice Philip Waki, found that the retaliatory attacks for which Head of Civil Service Francis Muthaura and Deputy Prime Minister and Finance Minister Uhuru Kenyatta are accused of chairing and facilitating, were planned at State House, the official residence of the President.
"The Commission has also evidence that Government and political leaders in Nairobi, including key office holders at the highest level may have directly participated in preparation of the attacks. Central to that planning were two meetings held in State House and Nairobi Safari Club in the run-up to the election," the Waki report says.
State house meeting
A criminal lawyer familiar with the ICC process sees gaps in the list of ‘The Hague Six’ and says it was determined by other factors rather than lack of sufficient evidence against the principals. When the envelope containing names of the suspects was handed to Ocampo, the ICC Chief Prosecutor announced he was pursuing 12 prominent people, among them six ministers.
"State House is not a hotel or kiosk where you just walk in and out at will. The retaliatory attacks must have been planned with the knowledge and blessings of the residents of State House," says the lawyer, a key ICC contact person in Nairobi.
He says the ICC spared the Executive from culpability as a public relations strategy to gain the support and confidence of African countries critical of the court’s perceived selective prosecution of African leaders.
When the issue of President Kibaki and Prime Minister Raila Odinga’s culpability was raised at Ocampo’s press conference, where he named Muthaura, Uhuru, suspended Higher Education Minister William Ruto, Industrialisation Minister Henry Kosgey, former Police Commissioner Maj-General Mohammed Hussein Ali and FM radio presenter Joshua arap Sang, he said he did not find sufficient evidence to indict the two principals.
He added the two bear political responsibility, which the ICC does not handle. The lawyer, who could not be named because he would be perceived to be speaking for ICC, warns the Executive is not yet off the hook.
Another Sudan?
"Depending on the nature of witnesses the accused invite, the suspects who feel they are sacrificial lambs might request the court to summon their superiors to testify. When the trials commence in May next year, the tenure of the grand coalition will be ending. When the president loses prosecution immunity, it will be possible for suspects to demand they be summoned because Uhuru and Muthaura’s meeting with Mungiki leaders took place in State House," says the lawyer.
When Ruto visited The Hague, it was reported he deposited minutes of his party’s meetings. Although details of the documents he passed over to the court are unknown, it is widely believed the Eldoret North MP is building a case against the Prime Minister, who he accuses of initiating calls for mass action.
It is noteworthy that Ocampo has asked the National Security Committee to hand over minutes of the meetings held at State House, which according to the lawyer suggests the two principals are still on ICC radar.
Another lawyer Harun Ndubi, who is conversant with the ICC criminal procedure, says the prevailing circumstances in Kenya — political and otherwise — persuaded Ocampo to navigate carefully. Mr Ndubi says unlike the Sudanese situation where war is till going on, Kenya is healing from the abyss of poll chaos.
"It is difficult to guess the criteria ICC used to arrive at the list of six. One can only guess ICC did not want another Sudan in the region. An attempt to indict the President would have escalated ethnic tension. It is possible Ocampo reasoned that to indict the President would create another Sudan," says Ndubi.
Another school of thought suggests the Ocampo decision to exempt the principals is a strategy to get the co-operation of African governments.

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