Friday, March 11, 2011

No easy way out of The Hague process

By Standard TeamGovernment effort to fight proceedings against 'Ocampo Six' on grounds of admissibility of the cases weakened after International Criminal Court spelt out conditions for the challenge to pass. In a video series circulated to local television stations by its Outreach Unit, ICC declared the challenge would only be entertained if the country "has actual proceedings against the same individuals and over the same charges".
"You cannot challenge the admissibility of a case on the basis of future proceeding before eventual establishment of a court," said ICC Senior Legal Advisor Gilbert Bitti.
ICC legal experts also painted a grim picture for the politicians in the list, that it might take as long as seven months for the confirmation of charges, which leads to trials to be completed.
But the good news was that the Pre-Trial Chamber could also in this drawn-out stage decide the Chief Prosecutor does not have enough evidence to support his charges and decide to kill the case altogether.
However, the Judges also reserve the right to ask the Prosecutor to amend his charges or go for more evidence.
After this stage, if the Pre-Trial Judges deem there are reasonable grounds for trials, it would pass the case to a new set of judges to handle the second and the more complicated part.
From an elaborate and costly shuttle offensive to seek deferral, and now to challenging the cases on account of inadmissibility, the Moreno-Ocampo process has become a pain in the neck for the Kibaki Government.
The bad news for President Kibaki — who is on the other hand leading a deferral bid through shuttle diplomacy and lobby of UN Security Council by Vice-President Kalonzo Musyoka — came along with America’s declaration it would veto Kenya’s deferral request at the Security Council.
US Deputy Secretary of State James Stenberg said the US, which has a veto power at the Security Council, would not support a resolution to defer the Kenya investigations.
The unflattering statement by ICC and US also coincided with declaration by President Kibaki’s spokesman, Alfred Mutua, as well as Cabinet members from his Party of National Unity, that the State officials who received summons would not step aside.
Domestic mechanism
This was in reference to Deputy Prime Minister Uhuru Kenyatta, who is also as Finance Minister, the Head of the Civil Service and Secretary to the Cabinet, Francis Muthaura.
Mr Muthaura reports directly to the President. Another suspect is Postmaster General Hussein Ali, who was the Police Commissioner during post-election violence.
Stenberg also dismissed the lobby of UN by Kenya arguing the country should establish a credible domestic mechanism, and begin proceedings against the individuals who are the subject of ICC Prosecutor’s application.
Bad news for President Kibaki from ICC; US to veto deferral bid.
There were also reports in the Cabinet meeting yesterday, chaired by President Kibaki the issue of ICC did not feature.

It is probable the matter has been left with its sub-committee on ICC, which Internal Security Minister George Saitoti, chairs.
After its Wednesday meeting, curiously attended by Prime Minister Raila Odinga, but boycotted by ministers allied to his party, the sub-committee issued a statement saying, "The Government will challenge the admissibility of the cases as well as the jurisdiction of the court." Prof Saitoti, Attorney General Amos Wako, and Justice minister Mutula Kilonzo signed the statement.
Dr Mutua, who directly takes orders from President and Muthaura on delegated arrangement, was categorical issuance of summonses was not the same as being charged.
He, however, did not explain the conflict of having senior State officials serving in Government, which is resisting ICC cases while it’s a signatory to the Roman Statute.
Charges
He also did not discuss the implication given the seriousness of the charges the three, as well as William Ruto, Henry Kosgey and Joshua arap Sang will be read to on April 7 — all which fall under the category of organised crimes against humanity. They include murder, rape and evictions for Uhuru, Muthaura and Ali.
"This in Kenya would be similar to being asked to visit the nearest police station or CID office or Kenya Anti-Corruption Commission offices to record a statement so that a determination can be made whether one has a case to answer," Mutua argued.
"So far no one has been charged or indicted," he argued, further saying it is only after one has been charged that they are expected to immediately step aside.
Mutua spoke at his weekly press briefing at the Kenyatta International Conference Centre, which is usually cleared by the Presidency through Muthaura’s office.
Another sign the three won’t be stepping aside came from PNU Secretary General and Energy Minister Kiraitu Murungi.
He said the summonses meant the ‘Ocampo Six’ were merely going to ICC for confirmation of the charges.
He added the court could still reject the charges and consequently termed the calls premature.
"For those saying Uhuru and Muthaura should step aside, I want to tell them it is too early," said Mr Kiraitu, who has had the experience of leaving office to face investigations.
Public Health Minister Beth Mugo, also from PNU, said the Government’s decision to challenge ICC on grounds of admissibility would complement Kalonzo’s diplomatic foray.
"Justice for the victims will not be delivered at The Hague. Justice will be delivered here on our own soil," argued Mrs Mugo, who is Uhuru’s kin.
It also emerged Uhuru’s two foreign lawyers are already in the country, while those of the other five are preparing their clients for the appearance before Pre-Trial Chamber II judges next month.
ICC announced neither of the six would be arrested on arrival at The Hague and all will be free to return to Kenya the following day — April 8.
Shuttle trip
Whereas PNU MPs met under Kiraitu and spoke in one voice, ODM, some of whose allied ministers have joined Kalonzo’s shuttle trip, announced its National Executive Council and Parliamentary Group meets next Tuesday, to discuss ICC process. It is, however, expected Rift Valley MPs allied to Ruto would not attend.
ODM Secretary General Anyang’ Nyong’o also announced the party has not taken an official position.
But he indicated the party might not challenge the summonses because US, Britain, and France had refused to back Kenya’s quest.
"We also advise Kalonzo to pack his bags and return home since his mission is definitely going to be unprofitable for Kenya," said Prof Nyong’o.
The civil society kept up the pressure with Amnesty International urging the Government to co-operate with ICC instead of escalating hostilities.
"Those allegedly responsible for human rights violations in Kenya in 2008 cannot continue to dodge justice," said Erwin van der Borght, Amnesty International’s Africa director.
"The Kenyan authorities must co-operate with ICC, rather than persisting with attempts to have the trials in Kenya," said Borght, in a statement posted on the organisation’s website.

No comments:

Post a Comment