Lawyers’ bitter pill for State on ‘Ocampo Four’

By ALEX NDEGWA

The window for the Government to challenge admissibility of the Kenyan cases closes once trials against the ‘Ocampo Four’ start at the International Criminal Court.

A report by a panel of lawyers advising the Government on the cases says an "admissibility challenge could be brought at any time up until the scheduled commencement of any trials before the ICC".

President Kibaki (left) and Attorney General Githu Muigai, who constituted a panel to advise Government after the International Criminal Court confirmed crimes against humanity charges against four Kenyans. [PHOTO: FILE/STANDARD]

The Attorney General briefed President Kibaki on Wednesday on the recommendations, which include the appointment of an independent Special Prosecutor to try 2008 post-election violence cases, including those involving the ‘Ocampo Four’.

The ICC presidency is due to constitute a trial chamber for the prosecution of Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Head of Civil Service Francis Muthaura and radio journalist Joshua arap Sang on crimes against humanity charges.

Given the confirmation of charges against the four, the lawyers say a second attempt by the Government to block the international court from prosecuting the four is a tall order, as it has to establish "exceptional circumstances".

"The Government would at least have to show the existence of genuine and concrete investigations and prosecutions, whether undertaken by the existing justice system or by a special prosecutor.

"These investigations and prosecutions would have to cover the same individuals and substantially the same conduct as alleged in the proceedings before the ICC," reads the report, which was submitted to Attorney General Githu Muigai on Monday.

The ICC Appeal Chamber has ruled unless investigative steps were actually taken in relation to the ICC suspects, there would be no conflict of jurisdiction between the court and the national proceedings.

"Questions remain concerning the political will to undertake such investigations and prosecutions," says the report, citing inaction against key perpetrators and the challenges facing the Director of Public Prosecutions.

But the lawyers say a jurisdiction challenge by the Government "at this time or at a future date" is not useful and neither should it consider another application to the UN Security Council for deferral.

Merits of appeal

Equally, the Government has been dissuaded against intervening in the merits of the appeals on jurisdiction filed by the four defendants.

"Such initiative by the Government may be seen as seeking to assist the accused," it notes, referring to applications by Uhuru, Ruto, Muthaura and Sang, their last hope to stop trial. But in case of an admissibility application, the committee advises the appointment of a Special Prosecutor for 2008 post-election violence cases, including the four accused, with a "strict timetable for the completion of all investigations and prosecutions".

And the decision to make such an application would have to be based on the progress in investigations by the Special Prosecutor, the lawyers advise.

"In view of where the ICC process in respect of the four accused has reached, a national process that is sufficiently advanced as against the four accused would have to be demonstrated," the report says.

For local investigations, the lawyers recommend an audit of all post-election violence cases to give priority to those that require prosecution, identify those that lack evidence to prosecute and those that victims prefer dropped.

The report reminds the Government of its obligations to cooperate with the ICC, including in enforcing arrest warrants and seizure of property if requested.

The lawyers advised appointment of the Special Prosecutor could be done under Article 157(9) of the Constitution without the need to pass a new law.

When the ICC confirmed the charges against the four, the AG indicated he would petition Chief Justice Willy Mutunga to set up a Special Division of the High Court to try post-poll chaos cases.

Special prosecutor

But The Standard on Sunday has established the CJ is yet to receive formal notification on the matter. However, the statement from the AG’s office highlighted the recommendation on the appointment of a Special Prosecutor, which suggests the State’s preference.

"The engagement of a Special Prosecutor would not require the creation of a special court or chamber as the existing court system under the new Constitution can try such cases although its capacity needs to be enhanced," the report says. "The Government should consider selecting and engaging an autonomous and independent Special Prosecutor who will enjoy public confidence," it adds.

But an appointment of a Special Prosecutor under Article 157(12) which allows Parliament to assign prosecutorial powers to other person(s) other than the DPP would require new legislation.

The report recommends adoption of an overall policy to deal with post-poll violence cases founded on a reasonable balance between retributive and restorative justice mechanisms.

To ensure credible probe or trial of any person suspected of involvement in the polls chaos, including the Ocampo four, the report recommends the strengthening of the Witness Protection Programme.