ODM wants UN to oppose Kenya's ICC case deferral bid

BY BEAUTTAH OMANGADifferences in the coalition deepened over the impending International Criminal Court trials with Prime Minister Raila Odinga's wing of Government writing to the UN to distance itself from the push for deferrals.
The PM’s party accuses President Kibaki and PNU of proving, through their efforts to get a deferral, their unwillingness to punish post-election violence perpetrators.
"The deferral request should, therefore, be seen as evidence that PNU and Kibaki are unwilling and cannot prosecute the six suspects for crimes alleged by the ICC," wrote Prof Anyang’ Nyong’o, party secretary general.
In a letter to the UN Security Council President Li Baodong, Nyong’o also listed 16 grounds for the party’s opposition for deferral or referral of the cases.
From 16 points listed by ODM, it is clear the PM’s party is strongly rebuffing reasons advanced by Kibaki in his letter to Baodong a few days ago.
It is ODM’s view that contrary to President Kibaki’s fears that the trials could ignite chaos, the prosecution of the suspects at the ICC does not pose threats to international peace and security.
"To the contrary, failure to bring to justice the perpetrators of post-election violence poses grave danger to Kenya’s internal peace and security," said Nyong’o.
Nyong’o told the UN Security Council that the ICC process was unanimously approved by the two parties under the Annan-brokered National Accord, and the instruments that paved the way for the process were signed by the President and the Prime Minister.
Fight impunityNyong’o, who is also the Medical Services minister, said most Kenyans (more than eighty per cent) support the ICC process as the most credible means to fight impunity.
Surveys by leading institutions have repeatedly confirmed this position, he said, adding local trials would be exposed to political manipulation.
He said already, many witnesses had been hunted down and killed by State security agents.
The letter said local trials were not possible as there was no judicial mechanism in place to handle the cases.
"There have been no investigations and prosecutions since the crimes were committed more than three years ago. Moreover, the criminal justice system has not been reformed to allow it to handle the cases," said the ODM official.
He said although Kenya had enacted the International Crimes Act, it is in doubt as to whether local courts have jurisdiction over international crimes committed before January 2009 when the Act became operational.
Nyong’o said judicial reforms contemplated under the new Constitution had not been implemented, as judges and magistrates have not been vetted. He also said so far, there is no independent prosecutorial authority.
Commitment to co-operate
"Involvement of the ICC was necessitated by Kenya’s rejection to establish a national judicial mechanism to deal with the crimes.
In fact, the Government repeatedly made verbal and written commitments to co-operate with the ICC and indicated if it was unable to prosecute the perpetrators of post-election violence by September 2009, the ICC should do so.
Those written and public commitments were made by the Government to the ICC Prosecutor both at The Hague and during his official visits to Nairobi," wrote Nyong’o.
The party says local trials would be used to shield the suspects.
"Although President Kibaki was forced to withdraw his nominations (of top judicial officials) through public outcry, a court order and stinging resolutions of the National Assembly Speaker, the Judicial Service Commission, the Commission on the Implementation of the Constitution, the Law Society of Kenya, the Federation of Women Lawyers and nearly all Kenyan civil society groups, it demonstrated the extent to which his party and the six individuals summoned by the ICC would go to defeat the cause of justice," said Nyong’o.