Following advice from two United Kingdom barristers retained by the State for expert opinion on how to win a referral of the ICC cases to a local tribunal, Kenya plans to file a special application at The Hague by April 1. It will seek that Kenya’s challenge of admissibility of ICC cases and jurisdiction of The Hague’s court be delayed for six-months from the filing date.
The President’s side, emboldened by the advice of the two foreign counsels, one of whom was ICC deputy prosecutor during the trial of former Serbian leader Slobodan Milosevic, hopes the appointment of a new Chief Justice, Director of Public Prosecutions, and completion of judicial and police reforms, would soften the judges to let Kenya try post-election violence cases.
It is clear from the new strategy that the President side has dropped shuttle diplomacy option of courting the UN for a one-year deferral, which had hit the brick wall anyway, and decided to engage ICC directly.
The Standard obtained copies of the expert opinion given by the two British lawyers, Sir Geoffrey Nice, who has a record of prosecuting ICC cases, and Rodney Dixon, to Attorney General Amos Wako. There are also in this bundle AG’s instructions to the barristers; complete with a directive they should not let Kenya "be pushed into a corner with our pants down".
The lawyers also anticipate that sections of ruling coalition may file counter-applications at The Hague, but declare to AG, "we must be ready to defend the Government against such attack".
They also acknowledge public reports of divisions in the coalition may "undermine the credibility of our application".
 |
| Attorney-General Amos Wako (left) and President Kibaki |
Their argumentThey will argue also that Kenya has been a State party of the ICC and should be accorded the respect it merits, rather than treating the country as an unwilling non- co-operating State referred to the ICC by the UN Security Council.
The lawyers will contend this would be the impression created of Kenya if, "with its house already being put in order" it is denied the opportunity to take over the cases to prosecute, including those at the top of political, military and administrative hierarchies who merit.
They will also argue the handling of Kenya’s plea could affect the credibility of the ICC, which could be reference to displeasure with ICC by African Union member states
The lawyers warn against delays saying an application made after April 7, has diminished prospects of success since judges won’t be eager to relinquish a case once they begin poring through the evidence prior to confirmation of charges.
They also intend to argue national courts can try the crimes under the new Constitution.
According to the opinion from the two Queen’s Counsel dated March 12, which has been accepted by the AG, Kenya is supposed to question the admissibility of the case by April 1 so that "it sets the agenda for April 7", when three of six Kenyans are supposed to appear at The Hague. The second lot of suspects appear on April 8. Filing the cases before April 7, the strategists anticipate, would stop the appearance of the six before the judges from grabbing the spotlight in a way that may endorse the view that the cases should be tried at The Hague. The six-month strategy is said to be a window to allow the Government, whose deferral option action is opposed by Orange Democratic Movement, to buy time within which the critical judicial reforms would be in place.
"By that date — inevitably some months after the April 1 initial application date — reforms will be much further advanced and Kenya’s position vis-‡-vis the ICC’s will be much stronger," the lawyers said.
"Making an application now is much to be preferred and will be seen as an act of strength. Announcing that an application will be made in the future date is a weakness that would be picked and used by the prosecutor, and even the court itself, to deny Kenya to exercise its sovereign right to try its citizens,’’ the counsel advise.
In his correspondence, Wako seems to be telling the lawyers that they should give value for money and ensure that the application does not fail.
In his letter of March 21, to which he alludes to previous detailed brief he gave the counsel, Wako asks them to be careful because Kenya has only one chance to stall or delay the cases — which is now in their hands.
Pushed into a corner Wako instructs Nice: "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."
In their advice, the lawyers describe the task as onerous, but insist the application to challenge the cases on grounds of admissibility stands a good chance if their advice to Kenya is followed to the letter.
"In our judgement the fight will be hard but provided the principles identified above are respected, then this is an application that should be brought," the lawyers conclude in the document.
They also caution success depends on the Government’s determination to complete judicial and willingness to prosecute the high and the mighty. This could explain why the police this month started investigating post-election violence cases afresh.
According to their plan, the lawyers intend to argue too for the suspension of the consideration of the charges — even though the Rome Statute does not expressly provide for that — citing the Government’s support for the ICC despite a hostile resolution by Parliament urging it to renounce the Rome Statue.
According to the five-page document compiled by Nice and Dixon, the lawyers suggest a step-by-step application in the hope the six to seven months before confirmation process, which begins next month, would be sufficient to complete reforms to shore up Kenya’s claim it meets what, in ICC parlance, is called ‘complementarity.
Posts
No comments:
Post a Comment