Tuesday, March 8, 2011

Plans to block ICC arrests underway

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THE government plans to shield the Ocampo Six from arrest even if the International Criminal Court issues warrants against them. The plans have gained impetus even as diplomats from countries which are members of the UN Security Council indicated their governments were unlikely to consider a request to defer the case against Kenya.

Vice President Kalonzo Musyoka and six Cabinet ministers have started a second round of shuttle diplomacy to lobby the 21 members of the UN Security Council.

Top government operatives have held several meetings to strategise on what to do if the ICC issues warrants of arrest instead of summonses to the six suspects identified by ICC chief Prosecutor Luis Moreno-Ocampo as bearing the greatest responsibility for the 2007-08 post-election violence.

The Ocampo Six are Deputy Prime Minister Uhuru Kenyatta, suspended Higher Education minister William Ruto, Head of Public Service Francis Muthaura, former police commissioner Hussein Ali, sacked Industrialisation minister Henry Kosgey and Kass FM radio presenter Joshua arap Sang. "There is a general consensus in PNU that we should stop co-operating with ICC. If the ICC goes ahead to indict them, we should not arrest them," said a senior official in the Office of the President. Arrest warrants would only be issued by the ICC if the suspects refused to respect the summonses to appear in the Hague.

Last week Justice minister Mutula Kilonzo told the 16th session of the UN Human Rights Council, “The government reiterates full cooperation with the ICC within the framework of the Rome Statute. Furthermore with a reformed Judiciary, the government is determined to set up a local judicial mechanism to deal with the perpetrators of post-election violence."

One of the meetings in Nairobi to discuss the options available was attended by five of the six suspects. The meeting resolved to accord the Ocampo Six "total state protection" in case of a "rogue" reaction by the ICC.

One resolution at a meeting last week attended by several lawyers and Cabinet ministers was to vilify the ICC and make it to look like an aggressor against the people of Kenya. A PS was tasked to mobilise a petition to be signed by at least six million Kenyans to protest against the Hague process.

The PS has issued verbal instructions to the provincial administration which has already started gathering signatures through forms supplied to all offices down to the chief level.

Three District Commissioners confirmed to the Star that they had received the instructions and had ordered chiefs and assistant chiefs under them to collect signatures and ID numbers from 315 people from each sub-location to support a local tribunal. There are over 20,400 sub-locations all over the country.

The petitions are also being circulated at PNU public rallies and meetings including on Sunday at the funds drive at Ruthimitu church in Dagoretti addressed by Uhuru and five PNU ministers and MPs. The MPs asked those at the meeting to ensure they signed the petition.

In the rallies over the weekend and addressed by Uhuru and Ruto, the ICC was presented as an enemy with acting government Chief Whip Johnstone Muthama saying Kenyans will not allow Europeans to arrest Uhuru, the son of Jomo who was jailed for nine years. “It is a matter already concluded. There is a guarantee from the government that none of the six will be handed over. Just see how the suspects are brimming with confidence,” said an MP close to one suspect.

The anti-ICC signatures campaign is being organised by a consortium of NGOs supporting PNU's plan to ensure the Ocampo Six do not go to the Hague.

They launched the campaign to counter pressure group Change Associates that is organising a petition in support of Ocampo and claims to have 600,000 signatures already.

The anti-ICC groups has organised a national conference of community elders and selected politicians called Haki Nyumbani to be held later in the month. In his first round of shuttle diplomacy, VP Kalonzo Musyoka toured 11 African countries to seek support for deferral of the Kenyan case.

Yesterday nominated MP Mohamed Affey who accompanied the VP denied that their mission involved negotiating a safe landing for the suspects. “The mission was never Kalonzo’s. It was the President’s and the VP was only an envoy. We delivered a very clear letter with a message on Kenya’s request for deferment,” Affey said.

The ICC Pre-Trial Chamber is expected to rule on admissibility of the Kenyan cases in March or early April. The ICC indicates the ruling has been delayed by the numerous applications by the Ocampo Six that the pre-trial judges have to consider first.

Despite all the manoeuvres, diplomats representing members of the UN Security Council said Kalonzo's second round of shuttle diplomacy stood no chance of success and would only embarrass the country.

Germany, a non-permanent member of the council representing Western Europe, said it would not support the deferral request and was “still considering” an application lodged with by President Kibaki’s government for an appointment with Chancellor Angela Merkel. German ambassador Margit Hellwig-Boette said Kenya ought to face the ICC “directly” and not move “sideways” by dragging the UN Security Council into the affair. “The answer is no. We are not supporting Kenya on this one. We think the idea is not a good one,” she said,

The Council can grant a one year deferment if Kenya demonstrates that the prosecution of the Ocampo Six will threaten international peace and security. “We don’t see the point of it at all. In fact, the situation is very much the other way round,” Boette said implying that regional peace and stability will be secured through successful prosecution of the suspects. “When I look at the composition of the Security Council, I don’t think it will succeed. The US and the UK who are among the five permanent members have clearly said they are against it. Besides, Kenya is not anywhere in the agenda of the council this month,” she said.

The fact that the deferment is being pushed by only one half of the coalition government also makes it unlikely to succeed. UK High Commissioner Rob Macaire said there “was no basis” for Kenya to go the Security Council to seek a deferral. Like Germany, Macaire said his government was considering a Kenyan request for an appointment with Prime Minister David Cameron.

He said a deferment could only be granted in “exceptional circumstances” but implied that the Kenyan case was not exceptional in any way. “If Kenya wishes to set up an alternative means of prosecuting cases of post-election violence, we would recommend they consider applying to the ICC under Article 19. This would be less politically divisive than seeking UN Security Council engagement on this issue,” Macaire said.

The UK, US, China, France and Russia are the permanent members of the council. Germany and Portugal represent Western Europe in the council. Other non-permanent members are Nigeria, Gabon and South Africa representing Africa, India and Lebanon representing countries in Asia and the Arab group, Brazil and Colombia representing Latin American countries and the Caribbean and Bosnia-Herzegovina representing Eastern Europe.

Kalonzo and the six ministers appointed by President Kibaki as special envoys are expected to canvass these countries to seek their support for a deferral. Apart from Kalonzo, the other special envoys are Njeru Githae, Sally Kosgei, Hellen Sambili, Chirau Ali Mwakwere, George Saitoti and Richard Onyonka.

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