Now on their own, the suspects must now fight the charges facing them, against which The Hague judges will decide if there is adequate evidence to sustain trials, during the September 1 and 21 confirmation hearings. This is because the State lost the only means by which it could reclaim the cases and handle them locally.
It also goes that the six now have only one remedy in law — to fight ICC Prosecutor Luis Moreno-Ocampo’s evidence through the route defined by the Rome Statute, and in the ICC courtroom.
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But there is only one window left: Kenya has five days to appeal the ruling.
The decision by International Criminal Court’s Pre-Trial Chamber II Judges means even the option of special local tribunal Kenya had dangled before the ICC in a bid to persuade it to surrender the cases against the six to her courts, has been rendered inconsequential and unhelpful in stopping the two cases.
The biggest blow was to President Kibaki whose Government has fought hard to block the cases on the basis it should be trusted to handle them under the new Constitution, and in the environment of a reformed Judiciary soon to get a new Chief Justice and Director of Public Prosecutions.
It must have been the hardest blow to Kibaki yet since Moreno-Ocampo read his list of high-profile Kenyans he wants charged with crimes against humanity.
Undiplomatic reactionThe angry and uncharacteristically undiplomatic reaction by Attorney General Amos Wako to Ocampo’s accusation on Sunday that the State was sabotaging his cases and protecting the suspects, seemed to capture the Government’s bitterness and desperation over the turn of events.
It was also instrumental that, as with all statements cleared by the Presidency, Wako’s was posted by the Government Spokesman Dr Alfred Mutua in his official website.
Wako said he had instructed lawyers representing the Government at the ICC to look into the matter and take appropriate action.
"I am therefore instructing our Attorneys to look into this matter and if appropriate bring it to the attention of the ICC," added Wako in a statement he sent from Geneva, Switzerland.
Wako hit out Moreno-Ocampo arguing the statements amounted to interfering with the cases at the ICC.
"It is improper for Ocampo to make such public statements which could have the effect of interfering with the due process before the International Criminal Court. In municipal or domestic law, these could well amount to acting in contempt of court," he added.
Credible investigationsThe AG said Kenya had played a leading role as a member if the Rome Statute and supporter of the ICC, and will continue to do so. But it also appeared Moreno-Ocampo’s damning accusations against President Kibaki’s government on Sunday, last night’s arrival of ICC delegation for crucial talk with State officials, and today’s meeting between the ICC team and Cabinet sub-committee on The Hague matter, were choreographed or synchronised.
Judges Ekaterina Trendafilova, the chamber’s Presiding Judge, Judge Hans-Peter Kaul and Judge Cuno Tarfusser ruled Kenya had failed to institute credible investigations or prosecutions against the six suspects. They also found out the investigations ordered by the AG for CID to commence fresh investigations against post-election suspects was given two good weeks after Kenya’s expatriate lawyers filed the case challenging the admissibility or legality of ICC cases against her subjects, at a time she argued her judicial environment was far improved and could be trusted to work impartially.
Kenya had requested for a six-month period within which it would prove to ICC that it meant business when it said it could be trusted to dispense justice to both the suspects and victims of post-election violence.
But in the end, the Judges ruled the two cases were admissible, and would go on, and that the government’s case was weak and unconvincing.
The ruling came as the Cabinet sub-committee on The Hague affair; chaired by Internal Security minister Prof George Saitoti, who doubles up as acting Foreign minister, dusted their files in readiness to meet the ICC delegation today.
During the meeting it is expected the ICC team will confront the ministers with reasons why the Prosecutor’s office believes Government is sabotaging his cases.
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The delegation is also expected to meet President Kibaki and Prime Minister Raila Odinga to table ICC’s grievances against Kenya’s official handling of the cases against the Ocampo Six, especially the expensive ‘shuttle-diplomacy’ against The Hague that was sanctioned by the President Kibaki and executed by Vice President Kalonzo Musyoka.
The sub-committee is expected to first meet and forge a common ground ahead of the talks forced by Moreno-Ocampo’s damning accusations against the Government on Sunday.
AccusationsTop on the list of accusations is alleged protection of the Ocampo Six. It is expected continued retention of Uhuru Kenyatta, as Deputy Prime Minister and Finance Minister, as well as Mr Francis Muthaura as Head of Civil Service despite Moreno-Ocampo’s request that they be removed when he released his list of six, would feature in the discussions.
The Prosecutor’s office has always held that the retention of the two, who are in the Case Two Crimes Against Humanity suspects alongside Postmaster General Hussein Ali, is not only an act of defiance, but a calculated move to give them leverage over State machinery and resources.
It can also be argued that the ruling was more of a serious setback for the Uhuru, Muthaura and Ali, whom the Government had put at the front of its defence on the basis they were being victimised for executing their public duties during the post-election violence.
But is also a jolt to the three who are clustered in the first case — former Cabinet ministers William Ruto and Henry Kosgey, as well as Kass FM Head of Operations Mr Joshua Arap Sang — who would naturally have celebrated along with the others had the Judges ruled the cases were inadmissible.
On Monday, the ICC judges lamented as regards Kenya’s submission fresh investigations were ongoing: "The Chamber lacks information about dates when investigations, and whether the suspects were actually questioned or not and if so, the contents of the police or public prosecutions’ reports regarding the questioning."
The seriousness with which ICC takes the claims by the Prosecutor, ahead of the September confirmation hearings against the suspects is discernible from the fact its team in the talks will be led by Mr Phakiso Mochokochoko — who is Head of Jurisdiction, Complementarity and Cooperation. The Lesotho-born lawyer, works directly under Moreno-Ocampo and is accompanied by ICC’s Cooperation Advisor Shamisho Mbizvo.
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