Ocampo Six: Principals differ over ICC trials

By Martin Mutua

Cabinet is split and so are President Kibaki and Prime minister Raila Odinga over the bid to have Kenya’s two cases at the International Criminal Court deferred.

The widening camp between the two leaders came in the open as it emerged ICC wants Kenya’s assurance it shall support it in freezing or seizure of property of the Ocampo Six if the Pre-Trial Chamber judges issues summonses for them to appear in March. The court wrote to the Cabinet Sub-Committee on ICC chaired by Internal Security Minister George Saitoti last week ‘guiding’ the Government on the kind of co-operation it expects if the summonses are issued against them.

It also turned out Kenya’s bid to have the cases against six of its citizens deferred would feature during the Intergovernmental Authority on Development (Igad) meeting to take place on the sidelines of African Union Summit on Saturday.

The opposing positions the President and PM have taken on the contentious issue came out when Vice-President Kalonzo Musyoka said his multiple trips to African capitals to lobby against Kenya’s case was assigned him by the President.

But in a rejoinder Raila, who is against both the deferral and any attempt to pull Kenya out of the Rome Statute, declared the VP’s ‘shuttle diplomacy’ as something that was not discussed by the Cabinet.

"What the Cabinet discussed was the issue of referral of the cases and not deferral. At no time did we ever talk about shuttle diplomacy to lobby other countries, including the African Union," said Raila.

Lobby support

But Kalonzo invoked the President’s name: "I am not on a personal mission. I am going as a special envoy of His Excellency the President ... in Kenya the President’s intentions do not get questioned."

Vice President Kalonzo Musyoka reveals President Kibaki assigned him lobbying Africa to support Kenya's bid to defer ICC cases.

Kibaki and Raila both have almost the same number of ministers in Cabinet and when they disagree, their differences usually spill over to the Grand Coalition Cabinet.

Signs Cabinet is pulling in separate directions also came when Justice Minister Mutula Kilonzo, who is a member of the VP’s ODM-Kenya, questioned the logic of Kalonzo’s trips.

The minister argued the only brand of diplomacy that could be undertaken was with members of UN Security Council, but only when the case is "alive at the Pre-Trial Chamber".

The latest row exploded as it emerged Ambassador Christian Wenaweser, the President of ICC States Parties, arrived in Nairobi for discussions with President Kibaki and other leaders on Kenya’s relations with The Hague. He is expected to address a press conference in Nairobi at 4pm tomorrow, where the planned deferral is expected to feature at the AU meeting.

Kalonzo, who is a former Foreign Affairs minister, was emphatic it was only after the President intervention that he visited specific African countries to lobby for their support ahead of the AU Heads of State Summit in Addis-Ababa.

Kenya is believed to have secured the support of Djibouti, Uganda, South Africa, Burundi, Ethiopia, Malawi, and Tanzania before the VP left for Libya, Liberia and Nigeria yesterday.

Kalonzo carried on with his shuttle diplomacy despite reports the Chairman of AU Commission Jean Ping had rejected Kenya’s request for deferral.

"AU member States share the unflinching commitment to combating immunity and promoting democracy, the rule of law, and good governance on the continent as enunciated in the Constitutive Act of the Union," said Ping, in a statement released on Tuesday.

Kalonzo had allegedly delivered the message to Mr Ping, who also met Raila in Nairobi two weeks ago, but the request was said to have been rejected.

Judicial machinery

The VP explained he been authorised to inform leaders on the continent that the ICC only conducted preliminary investigations and that the country now has adequate judicial machinery to conduct investigations and trials of the suspects.

But curiously both Raila and Mutula, whose word has always been in tandem with the public position Kalonzo takes on national issues, dismissed Kibaki-Kalonzo bid for deferral. The two maintained at no time had the Cabinet discussed deferral of the cases as the VP claimed.

The VP, who will travel to Abuja after Tripoli, and then to Libreville, had earlier yesterday warned no one should question President Kibaki’s intentions and strategy against ICC investigations.

"When you talk about the President that supercedes everybody else," Musyoka warned yesterday when asked if the Grand Coalition Cabinet had authorised his trips.

The VP also indicated the Defence and Foreign Relations Committee of the Cabinet "which is chaired by the President, and sometimes by the Vice- President" had discussed the deferral, but could not say when the alleged consultation took place.

"There is nothing under the table. Kibaki does full consultations," explained Kalonzo, who claimed African diplomats at AU headquarters in Addis support the deferral.

Pressed further on this committee the VP said, "the Prime Minister (also) sits in it," without explaining if the Justice Minister also sits in it or if he briefed him on the President’s directive to lobby African leaders.

Raila told journalists the Cabinet only discussed formation of a local tribunal and that was to be followed up at an appropriate time when Parliament agrees to pass the required Bill.

The PM argued Kenya was a signatory to the Rome Statute and the AU had no say on whether she should pull out or not.

"How does the AU help in the ICC matter?" Raila asked. He argued if Kenya wanted to pull out of the Rome Statute it would deal directly with ICC and not any other parties.

Mutula, too, said there was no way Kenya could ask for deferral for a case that had not even started. "We have created a national panic over a situation that does not exist," he added. "Or are they saying that the Ocampo Six should now be indicted?" asked Mutula.

International crimes

The Justice minister while quoting Article 16 of ICC Act, said deferral of a case could only be sought during investigations or when the prosecutor has begun prosecuting the case before the judges at the ICC.

"What I am saying is that by asking for deferral we are admitting international crimes occurred," he added.

Kalonzo disclosed Tourism Minister, Najib Balala, who was initially to be sent to meet Nigerian President would not be going.

Despite controversy over his trips and his intentions, Kalonzo argued the Kibaki Government expects the AU to pass a resolution and transmit it to the UN Security Council to delay investigations on the Ocampo Six.

Kalonzo revealed besides African nations he would also lobby India and Brazil, but denied "there is intention to withdraw Kenya from the ICC Treaty".

He also announced Kenya would launch "a clear case before the African Union and UN Security Council", asking the two institutions to compel ICC to defer the cases.