Deferral gives push for local mechanism

Written By:Collins Anampiu,    Posted: Sun, Mar 13, 2011

Vice President Kalonzo Musyoka may have claimed success in his tour of the US, Europe and Japan to lobby UN permanent members to support Kenya's bid to reschedule the prosecution of the ‘Ocampo Six'.

However, that may not be enough in the eyes of the ICC that holds the view that such plans can only succeed if the six suspects are facing similar charges at the Kenyan local courts.

In the strategy targeting the UN Security Council, Kenya has to garner the support of at least nine of the 15 permanent members and hope none of those with veto powers will exercise it.

Kenya's deferral plea to the Security Council is based on two provisions of the Rome Statute. First, the Rome Statute bestows upon the Security Council the power to defer ICC proceedings for 12 months in the interest of peace and security.

On this premise, Kenya argues that indictment of the six by the ICC, especially with elections around the corner, would lead to a recurrence of 2008 post election violence.

Secondly, under the principle of complementarily, the ICC is defined as a court of last resort that only intervenes when a member state is unwilling or unable to tackle serious crimes. 

And here Kenya remains adamant that it's still committed to tackle the cases locally hence its bid for more time to undertake key judicial reforms.

For now Kenya is banking of the United Nations Security Council to invoke Article 16 of the Rome statute on Deferral of investigation or prosecution that states.

"No investigation or prosecution may be commenced or proceeded with, under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions".  

However on the admissibility of the Kenyan case the government seems to have already lost ground as Article 17 of the statute on Issues of admissibility states a case is inadmissible where:

(a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b)     The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.

(d)     The case is not of sufficient gravity to justify further action by the Court.

In regard to the above requirements Kenya is yet to institute any investigation into the 2008 post election violence or prosecute a single suspect.

Even as the government hopes for a favourable outcome of its meeting with the UN Security council on Wednesday in a rare opportunity to justify its cause to defer the ICC trials, it must move with haste to establish a local mechanism make its cause more convincing.