Reject Kenya plea, Orange asks UN

The United Nations Security Council votes on February 26, 2011 on a resolution on peace and security in Africa. In its letter to the council, ODM argues that Kenya does not have competent courts or investigators to deal with crimes committed during the post-election chaos. AFP PHOTO / TIMOTHY A. CLARY 

By PETER LEFTIE pmutibo@ke.nationmedia.com AND WALTER MENYA wmenya@ke.nationmedia.com
Posted Sunday, March 13 2011 at 22:02

The Orange Democratic Movement has written to the UN Security Council, urging it to reject Kenya’s request for the postponement of cases facing the Ocampo Six at the Hague.

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In a strongly worded letter, ODM asks the Security Council to consider Kenya’s request as evidence that President Kibaki (as well as PNU) is “unable and unwilling” to punish those who committed crimes during the last election.

The party advances 16 reasons why the deferral should not be granted, with top among them the claim that the campaign for postponement is masterminded by the suspects who have been summoned to the Hague on April 7.

ICC prosecutor Luis Moreno-Ocampo accuses Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura, former police commissioner Maj-Gen Hussein Ali, Eldoret North MP William Ruto, ODM chairman Henry Kosgey and Kass FM presenter Joshua arap Sang of committing crimes against humanity during the violence.

However, suspended Higher Education Minister William Ruto dismissed the letter written by ODM to UN Security Council saying party members were not consulted.

“To the best of my knowledge, this a decision of Prof  Nyong’o and Mr Raila (Prime Minister Raila Odinga) and their henchmen. They did not seek our views or concurrence on this matter,” he said.

The Eldoret North MP said he and his supporters in ODM were going to write another letter to the UN Security Council in support of deferral of the ICC trials.

“They do not own ODM. ODM belongs to all of us and we are going to challenge their decision,” he said.

In its letter, ODM argues that Kenya does not have competent courts or investigators to deal with crimes committed during the post-election chaos.

The letter is written by secretary-general Anyang’ Nyong’o but issued in the name of the party and its leader, Prime Minister Raila Odinga.

ODM’s intervention comes a day after it was revealed that the Security Council had invited President Kibaki for an informal meeting on Wednesday to discuss the deferral request. (READ: UN council, Kenya to meet over ICC deferral)

Kenya will need the support of nine members of the 15-member council for its request to carry the day. It says it already has the support of 10 members and is encouraging those opposed to the request, such as the United Kingdom and France, to abstain.

However, in inquiries at the UN, the Daily Nation found no country which said it supports Kenya’s case. The government has been on a campaign to convince the Security Council to delay the cases for 12 months.

It already has the support of the African Union, whose members also form the large part of the membership of the International Criminal Court.

Powerful countries which are permanent members of the Security Council, such as the United States, China and Russia, are not members of the ICC.

Addressed to Mr Li Baodong, the president of the council, and copied to all members as well as the AU, the letter says in part:

“This petition presents a set of incontrovertible facts which will assist The Security Council and other interested parties to understand why the Kenyan cases at the ICC should neither be deferred nor referred.”

In the letter, the party says the masterminds of the election violence continued “to operate unfettered and occupied important positions of power within and outside government”.

Regarding the invitation to New York, Presidential Press Service (PPS) director Isaiah Kabira said the government will send a delegation to explain Kenya’s case.

“The invitation is to the government and not the President. The President is not going. We will be represented,” Mr Kabira told the Nation.

In its letter, ODM argues that the ICC process does not pose any threat 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,” the party says.

Eighty per cent of Kenyans, ODM says, support ICC as the only way of fighting impunity in the country because a local tribunal is likely to be manipulated by some of the suspects. (READ: Kenyans want suspects of poll chaos tried at Hague)

Arguing that Kenya does not have the judicial mechanism to try election violence cases, ODM states:

“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 enable it to handle the cases.”

The party claims the deferral bid is being pushed by the suspects to defeat justice.

The invitation by the Security Council follows last week’s meeting between Vice-President Kalonzo Musyoka and Mr Li during which the VP pushed for postponement of the cases to give Kenya time to set up a credible local mechanism to try the suspects. (READ: Kalonzo to press on with deferral bid)

The UN described the Wednesday afternoon meeting, which will also be attended by a representative from the African Union, as an interactive one.

Kenya has written letters to both the Security Council and the Assembly of State Parties to the Rome Statute arguing that the country may be plunged into chaos if the ICC process is allowed to go on hand-in-hand with the campaigns for the next General Election.

The country wants the two bodies to influence the postponement of the cases for at least 12 months to avert such chaos.

Whereas the VP’s handlers maintain that Kenya has already bagged the support of member states such as China, Russia, Nigeria, South Africa and Gabon, diplomats in the council told the media that the country has little chance of succeeding in its mission.

The United States, Britain, France — all permanent veto-wielding council members — are among those that oppose deferring the proceedings, envoys said.

Without US backing, Kenya’s chance of gaining the UN Security Council’s approval for the proposed deferral is limited.

The government has retained two British lawyers Sir Geoffrey Nice, Queen’s Counsel, and Rodney Dixon, to advice it on its quest to challenge the admissibility of its case at the Hague. (READ: State enlists Queen’s Counsel in Hague cases)

The two met Attorney-General Amos Wako last Friday. The government is understood to have undertaken to pay the legal bills for Mr Muthaura and Maj-Gen Ali.

But ODM says it will oppose plans to set aside public funds for the legal fees. Rangwe MP Martin Otieno Ogindo said the Treasury was plotting to table a supplementary budget that would facilitate the release of legal fees for some of the people facing charges at the ICC.

Mr Ogindo, his Karachuonyo counterpart, Mr James Rege, and Mr Joseph Oyugi Magwanga of Kasipul Kabondo vowed to block the scheme. (READ: ODM to block legal fees budget)

Sir Geoffrey has previously worked for the United Nations at The Hague where he prosecuted former Serbian President Slobodan Milosovic for war crimes.

Mr Dixon has been representing President Omar al-Bashir in proceedings involving the ICC and the Darfur conflict.

Some of the foreign lawyers have acted for a prominent cast of suspects, including former presidents Milosevic, Charles Taylor (Liberia) and Mr Jean-Pierre Bemba, a former DRC vice-president.

Others represented high-profile Rwandans facing genocide charges before the Arusha-based International Criminal Tribunal for Rwanda (ICTR). 

Mr Kenyatta is said to have sought the services of British lawyers Steven Kay and Gilian Kay Higgins who defended Mr Milosevic. The lawyers are expected to team up with local counterparts accredited by the International Criminal Court.

Head of Public Service Francis Muthaura has also sought the services of British lawyer Karim Ahmad Khan, who in 1996 led Mr Taylor’s defence.