Conspiracy against The Hague?

By Standard Team

Will President Kibaki co-operate with International Criminal Court in the next phase of trials if post-election suspects lose the last appeal standing between them and full trial at The Hague?

This is the big question lurking in the shadows of a series of events and even his own actions, which seem to point at the fact that something could be in the offing, or in the least, that someone may be softening the ground for non-co-operation with ICC.

The speculation something could be afoot rose on Tuesday, not just because of the reshuffle that settled scores over The Hague row in Cabinet.

Eldoret North MP William Ruto (left) and Deputy Prime Minister Uhuru Kenyatta [Photos: File/Standard]

This was also the same day Vice-President Kalonzo Musyoka, who with the blessing of the President, led the shuttle diplomacy across the globe to lobby for deferral or return of Kenya’s case at The Hague to the local courts, was in Sudan with a "special message’ for President Omar Al Bashir.

Now, Bashir is the besieged President indicted by ICC and whose movement is limited because an arrest warrant is out for him.

However, it came out he enjoys a cozy relationship with Kibaki’s administration when in 2010 he came to Kenya without fear of arrest and handover to the ICC.

The VP’s office, however, insists the visit had nothing to do with ICC, though it is unlikely a meeting between President Kibaki’s messenger and an ICC VIP suspect would end without discussions on The Hague given the profile of Kenyans fighting off full trial.

Wield influence

"The Vice-President went to deliver a message on behalf of President Kibaki to President Bashir on the South-North (Sudan) conflict," said Kaplich Barsito, the VP’s spokesman.

As Kalonzo met Bashir Kibaki reshuffled his side of the Grand Coalition Cabinet, transferring outspoken Justice minister Mutula Kilonzo from Justice Ministry, and Moses Wetangula from the Ministry of Foreign Affairs.

The changes saw the two replaced at the Cabinet sub-Committee on ICC by their successors in their previous offices – Eugene Wamalwa and Sam Ongeri.

The two newcomers to the sub-committee are perceived to be closer not only to the President, but even more sympathetic to Deputy Prime Minister Uhuru Kenyatta and Eldoret William Ruto, who are the key pillars of the G7 Alliance.

In the ICC trials, particularly for logistical, consultative and co-operation reasons, Justice and Foreign Affairs ministries play a significant role, and wield influence on the committee that is more like a clearing house for Government-ICC talks.

Travel abroad

"The State is slowly gravitating towards an anti-ICC establishment and it is being pushed by anti-reform forces among us," claimed Land minister James Orengo, who is a member of the sub-committee. He complained Mutula’s removal was bound to affect progress made on co-operation with ICC.

"I am seeing an attempt to prepare the stage for non-co-operation with ICC if you examine the recent happenings, but it will boomerang," Orengo warned.

He added: "Yes, you can fail to co-operate with ICC but remain a fugitive who is a villager...you cannot travel abroad."

Imenti Central MP Gitobu Imanyara said he was perturbed the Government had not been categorical on co-operation with ICC. "Going by what has happened one would arrive at the irresistible conclusion that the Government is preparing ground for non-co-operation," he added.

Also ahead of the eagerly awaited ruling on last appeal expected in May, two significant developments took place. In what could be argued to be a precursor to the Cabinet changes, last Friday, Gema (which brings together the Gikuyu, Embu and Meru communities) feted Uhuru in Limuru as central Kenya’s leader. They announced plan to collect two million signatures to petition ICC to postpone the Kenya case until after the General Election.

"The Government has not dissociated itself from the tribal meeting in Limuru yet the President’s name also featured at the meeting," complained Imanyara.

Immigration Minister Otieno Kajwang’ said if at any stage the court senses non-co-operation it would demand the Head of State personally co-operates by handing over the accused persons.

"If he doesn’t do so then a warrant of arrest would be issued against him personally and that is the nature of the International law as currently crafted," he added.

Earlier, Attorney General Githu Muigai appointed an eminent team of lawyers to advise the State on the ICC trials. It may be significant that the reshuffle and Kalonzo’s trip to Sudan came after these experts told the Government that the government would have no choice but to handover the suspects if their petition flops and ICC issues warrants of arrests.

Further signs that could trigger the question whether there might be a conspiracy building up against The Hague came up when ICC Prosecutor Luis Moreno-Ocampo protested the e-mails accounts of some of its witnesses and their associates were being hacked.

Vengeance scheme

Towards this end, police arrested a local journalist and dispatched two senior officers to The Hague to follow up the matter. The claim, if true, has serious implications for the lives of the witnesses, and could even undermine the case at The Hague if they then decide to step down from the dock for fear of their lives.

The State’s plan to reopen the 5,000 old post-election files also triggered debate on whether it was not either a silent threat to or vengeance scheme against some politicians who escaped ICC radar, or even an attempt to persuade The Hague Kenya has come of age and can no be trusted to try all post-election violence cases.

Side by side with this was the other curious action of recording statements from some of the ICC suspects by Criminal Investigations Department. This was seen as an attempt to persuade ICC that the Government can indeed be ‘trusted’ to handle the cases involving the big fish too.

But again this was done just as the Government hired British legal experts to fight off its case at The Hague through a series of appeals and jurisdictional arguments.

Alongside the claims of hacking of e-mail accounts came the so-called ‘UK Dossier’, dismissed as fake by Britain. The dossier purported to show that Kibaki, too, may be indicted on retirement, and that Prime Minister Raila Odinga could have played a role in The Hague cases, and is also the preferred candidate for the West.

Yatta MP Charles Kilonzo who tabled the dossier in Parliament declined to discuss the matter, saying: "I am prohibited to discuss such a matter when it is under investigation so let us wait and see what the committee would come up with."

Change of mind

Wajir West MP Adan Keynan, who is leading parliamentary probe into the dossier, refused to comment on it until the inquiry is over.

The last significant action on this front was President Kibaki’s certain change of mind on support for a December 2012 elections date to March 2013, which gives him the possibility of being in power until around May in case there will be an election run-off.

Kajwang’ argued Kenya tied its hands the moment it ratified the Rome Statue. "If there was any attempt to do any of these then the Government would be committing a serious international crime," he said.