I Didn't Know Ocampo Six Are So Powerful

Friday, 11 March 2011 00:06 BY MIGUNA MIGUNA

The statement issued on Tuesday March 9 by Attorney General Amos Wako, Minister for Justice Mutula Kilonzo and Minister for Internal Security George Saitoti purportedly on behalf of the "government" makes rubbish of the deferral campaign. The main argument in the deferral campaign is that Kenya has initiated far-reaching judicial reforms and is capable of trying the perpetrators of the 2007 post-election violence locally. PNU has argued that the deferral campaign doesn’t mean "the government" isn’t committed to having the perpetrators prosecuted; they only need a chance to try them locally
On March 4, the Kenyan Ambassador to the UN, Macharia Kamau, wrote on behalf of President Mwai Kibaki, to the temporary president of the UN Security Council seeking a deferral of the ICC process, including the cases against the Ocampo Six. The letter ominously warns that the “ongoing ICC process has the potential risk to reignite violence, breakdown of law and order and result in loss of human life in Kenya and disruption of economic, peace and security activities in the fragile and volatile sub-region…” Before then it hadn’t occurred to me that the Ocampo Six are so powerful that their prosecution could lead to a complete regional melt-down. Mr. Kamau sent a similar letter to the ICC President.
But the statement by the three PNU ministers argues that the "government" will challenge the admissibility of the cases facing the six suspects presumably because the "government" doesn’t believe that the ICC Prosecutor has a case against them. Well, the ODM members of the Cabinet sub-committee on Security James Orengo, Amason Kingi and Otieno Kajwan’g didn’t sign the statement. They weren’t consulted before it was issued. Neither a Cabinet nor a parliamentary approval was sought. So, which “government” is undertaking to use public funds without legal authority?
The statement also sharply contradicts what Kenyans have been told are the “reasons” for the deferral campaign. How can the government seek to have the proceedings deferred under the pretext that it is willing and capable of trying the suspects when at the same time, the government argues that the suspects have no case to answer? If the Ocampo Six have no case to answer, who will be tried by the local judicial mechanism being peddled to the world?
Moreover, no admissibility challenges can be entertained at the moment. Challenges can only be made during the "confirmation hearings", which are scheduled later this year. Significantly, as the “government” undertakes to challenge admissibility, the Ocampo Six have confirmed that they will present themselves to The Hague on April 7. None of them has said he intends to challenge admissibility. So, on whose behalf is PNU purporting to act?
The ICC court has simply ordered the suspects to "appear." On appearance, they will be required to "show cause" why they should be released on bail, with or without conditions. Right now they are only required to demonstrate their willingness to comply with the conditions of the court. The conditions imposed so far are fairly stringent. Francis Muthaura, Hussein Ali and Uhuru Kenyatta cannot comply with those conditions if they continue to serve in government. They must therefore be fired forthwith.
The bizarre statement is a further demonstration that the Kibaki/PNU wing of government continues to violate the constitution and laws of Kenya. Even common decency would have required that such a fundamental decision cannot be made whimsically and unilaterally by a section of government, without consultations and legal authority.
The letters the Kenyan Ambassador at the UN in New York have sent to the UNSC and to the ICC President are a chilling reminder that the conditions that created and then fermented the 2007 post election crisis and the concomitant commission of the international crimes to which the ICC are currently engaged with are still with us. The letter to the UNSC speaks of the potential for violence, chaos, destruction of property and instability if the current ICC process is not halted.
Quite clearly Luis Moreno-Ocampo is not seeking to try the country Kenya. The country is innocent of the heinous crimes committed between 2005 and 2009. The ICC summonses are not issued against the Government of Kenya. They are issued against six individuals who are alleged to be the masterminds of the crimes against humanity that were committed against innocent civilians. The government had a duty to protect those civilians. The fact that senior government officials are facing ICC indictments proves that the government did not just fail; it was part of the conspiracy to commit crimes against its own people. No wonder a section of the same government is now more worried about the six suspects than about the victims who haven’t received justice.
Ultimately, the Kibaki/PNU faction of government is openly warning the world that it will perpetrate similar crimes unless and until the Ocampo Six are left alone. That's the worst kind of impunity and it must not be allowed to persist. We must stand up and tell the merchants of impunity that Kenya belongs to all of us.

Mr. Miguna is the PM’s advisor for coalition affairs. The views expressed here are his.