Handle Hague case with care, warn ministers

Justice Minister Mutula Kilonzo (left) and his Lands counterpart James Orengo (right), both lawyers, have raised reservations about the legal advice given to the State by two British lawyers and asked that Attorney-General Amos Wako intervenes in the matter. Photo/FILE 

By NATION REPORTERS
Posted Thursday, March 24 2011 at 22:16

Two Cabinet ministers warned on Thursday that the government risks embarrassment if it does not handle its decision to challenge the International Criminal Court’s jurisdiction in the Ocampo Six cases with care.

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Justice Minister Mutula Kilonzo and his Lands counterpart James Orengo, both lawyers, raised reservations about the legal advice given to the State by two British lawyers and asked that Attorney-General Amos Wako intervenes in the matter.

Mr Wako, on his own, had also asked Sir Geoffrey Nice and Mr Rodney Dixon — the lawyers hired to execute the case — to ensure that the government does not embarrass itself before The Hague.

“As you act on our instructions, kindly ensure that we are not pushed into a corner ‘with our pants down’ because the hearing of the admissibility challenge is taking place earlier than anticipated,” the AG cautioned.

In their legal opinion, Mr Kilonzo and Mr Orengo want the application challenging the ICC jurisdiction filed by April 1 since key reforms in the Judiciary will be under way.

“We advise that the application made by April 1 asserts and argues that complementarity is indeed established, but specifies a period within which Kenya will provide additional evidence to show how capacity will have become even better established. We would suggest specifying a period no longer than six months,” they said.

They also warned against waiting until or after April 7, the date when Eldoret North MP William Ruto, ODM chairman Henry Kosgey and radio presenter Joshua Sang will appear before the Pre-Trial Chamber for initial appearance, to file the application.

Public Service head Francis Muthaura, Finance minister Uhuru Kenyatta and Postmaster-General Hussein Ali appear the next day.

“Delaying making the application until after April 7 would be very risky and almost certainly very damaging for the prospects of success of the application itself,” the lawyers warn.

Sir Geoffrey and Mr Dixon are also demanding that the government opens up about the problem it faces — historical or current — in trying the Ocampo Six locally.

They are of the opinion that issues at the centre of the challenge should be approached only legally and not politically.

“Political issues and concerns should either be openly acknowledged or set aside. There are some issues that could be characterised as political when they are arguably not,” they said.

However, on Thursday, it emerged that Mr Kilonzo and Mr Orengo had asked the AG to enrich this approach.

Mr Kilonzo argues that the British lawyers had not factored past rulings by the Pre-Trial Chamber judges.

“I notice that the opinion makes no reference to the recent rulings by the International Criminal Court,” he says in a letter to the AG dated March 16.

He drew the attention of the lawyers to the uniqueness of the Kenya case, saying it was an outcome of the prosecutor’s initiative and was authorised by the ICC judges.

He also reminds the AG of the dissenting opinion of Justice Hans-Peter Kaul who argues that the crimes would be best tried by local courts.

Mr Kilonzo says the government lawyers in their advice failed to appreciate the interest of Kenyans in the case and the grounds on which it was being challenged.

“The opinion does not take into account the fact that there is national interest and hence the tremendous value in Kenya knowing with certainty whether the cases are admissible and whether the court has jurisdiction.

“Kenya’s application would facilitate deeper interrogation of Justice Kaul’s opinion,” he stated.