Are the suspects safe from ICC detention?

By Evelyn Kwamboka Concern is growing that President Kibaki’s decision to retain two of the ‘Ocampo Six’ suspects in Government has put them at risk of tougher sanctions by the International Criminal Court at The Hague.
The two are Deputy Prime Minister Uhuru Kenyatta and Head of the Public Service and Secretary to the Cabinet Francis Muthaura
ICC Prosecutor Luis Moreno-Ocampo had demanded that Muthaura be stripped of his powers over the police by virtue of chairing the National Security Advisory Committee.
Members of the Committee include the Deputy Chief of General Staff, Commissioner of Police, Internal Security PS, and the National Security Intelligence Service Director.
Some senior policemen and Provincial Commissioners who were also serving in areas that were hard hit by the 2007-2008 post-election violence are witnesses in the cases against the Ocampo Six.
This month, civil society groups called on Uhuru to resign from the Witness Protection Advisory Board where he sits in his capacity as Finance Minister.
"Before we proceed, we need to be sure that Muthaura does not wield power over the police," said Ocampo via videoconference in early this month, when made the demands.
One of the fears has been that the two could be detained at The Hague when they appear before the court on April 8. But ICC Registrar Silvana Arbia said this month the six would not be detained as long as they adhere to the tough conditions the court set.
These include avoiding contact with victims or witnesses; not obstructing or interfering with the testimony of witnesses; not obstructing the Prosecution’s investigations; and attending all hearings of the court.
"Because they are free, they are not supposed to stay in The Hague, or to be retained here for any purpose other than the initial appearance. After the initial appearance, they are free, and on that same day, the Chamber will announce the first day for the hearing of whether to confirm the charges," said Arbia.
Nevertheless the fear will not go away. One lawyer familiar with ICC procedures, but who asked not to be quoted, said that when making his demands, Moreno-Ocampo was careful not to call for the resignation of Muthaura from Government because he has no power to do so. According to the lawyer, at this stage of the investigations, any decision to detain any of the suspects is the prerogative of the judges, but the prosecutor must first apply for it.
Clip wings

Two of the ICC suspects: Deputy Prime Minister Uhuru Kenyatta and Head of the Public Service and Secretary to the Cabinet Francis Muthaura.

However, Moreno-Ocampo did make an application to the ICC Pre-Trial Chamber at The Hague in which he asked the judges for leave to demand that Muthaura’s wings be clipped.
"As the Head of the Public Service and Secretary to the Cabinet, Muthaura is at the top of the administrative hierarchy, and all public servants and senior State House officials, including Ali as head of the Kenya Police, reported to him," said Moreno-Ocampo at the time.
Maj-Gen Hussein Ali, one of the Ocampo Six, has since been appointed Postmaster General. The other suspects are Tinderet MP Henry Kosgey, Kass FM presenter Joshua Sang, and Eldoret North MP William Ruto. Moreno-Ocampo can make an application for substitution of the summonses for any of the six with arrest warrants, by presenting evidence that they could be interfering with witnesses and investigations.
He can do this when the suspects appear at The Hague, but sources said the Government is ready to oppose any such application on grounds that no condition requiring Muthaura and Uhuru to quit office was given by the judges in their recent ruling.
But another advocate, International Criminal Tribunal for Rwanda (ICTR) defence lawyer, Duncan Mwanyumba said Muthaura and Uhuru should expect anything when they appear at The Hague along with former police Commissioner Hussein Ali. Ruto Kosgey, and Sang are expected on April 7.
"Moreno-Ocampo has his own prosecutorial agenda. He can apply for substitution of the summonses with warrants of arrest by weighing prevailing circumstances. The court will have to take into account the interests of justice when making its decision," he said.
He said the court can issue warrants if there is any justification that the two are interfering with witnesses and evidence, and may also issue the order if it appears that the Government is refusing to co-operate with ICC.
"The judges are also interested in building a jurisprudence in case law. If they think the arrests are fine, the orders will be granted to ensure that there is no interference with witnesses or evidence," he said.
Issue is complicated
Referring to how former Liberian strongman Charles Taylor was arrested, Mwanyumba said ICC has the powers to grant an application by Moreno-Ocampo for Muthaura and Uhuru to be arrested, if the two do not step aside before going to The Hague. However, unlike Rwanda that had no government when cases touching on the genocide started, Mwanyumba said the Kenya issue is complicated because there is a Government.
He said there is a battle between ICC discharging its international mandate, and the Government, with authority over the six suspects.
"The Government has an ego in terms of sovereignty. It is the same Government being asked to release the six suspects to The Hague, when some of them are still serving in it," he said.
He said issuing warrants of arrest while the suspects are still in the country might make things difficult for the prosecution.
Mwanyumba represented Shalom, who was a former student and an alleged militia leader in Butare (Southern Rwanda). The man, who was arrested in Kenya in 1997 at the request of International Criminal Tribunal of Rwanda (ICTR) Prosecutor, is the son to Rwanda’s former gender and family affairs minister Pauline Nyiramasuhuko.
Haki Forum Director Harun Ndubi said the positions of the two officers expose them to witnesses whom they are not supposed to have contact with.
"President Kibaki has shown unwillingness to assist ICC by refusing to replace the two officials. The positions have a huge influence on the Government’s co-operation with ICC," he said.