Trial of Hague 4 may coincide with the next elections

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ICC spokesperson Fadi El Abdallah during a workshop in Nairobi March 27, 2012. Photo/FILE 

By EMEKA-MAYAKA GEKARA gmayaka@nationmedia.com
Posted  Saturday, March 31  2012 at  22:30

IN SUMMARY

• ICC spokesman says the trial will start after a fairly lengthy preparation phase, which will depend on the efficiency of the parties

The trial of the Kenyans charged with crimes against humanity at the International Criminal Court might coincide with the election calendar.

This is likely to complicate matters for Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto, who have declared they will contest the presidency in the elections slated for March next year.

In an interview with the Sunday Nation, ICC spokesman Fadi Abdallah said that thoughthe trial chamber has been constituted, the trial proper will start after a fairly lengthy preparation phase, which will depend on the efficiency of the parties.

“Once the trial chamber has been appointed, there will be a preparatory phase which will see the judges set a timetable for disclosure of evidence between the prosecutor and the defence,” Mr Abdallah said.

After this, the parties will convene for a status conference at which procedural matters will be discussed as well as the sequence of the proceedings.

“The parties will present their observations to the chamber on their preparedness, which will review them and establish a timetable for trials proper.”

The ICC presidency on Thursday appointed judges Christine van den Wyngaert (Belgium), Kuniko Ozaki (Japan) and Chile Obeo-Osuji (Nigeria) to try the Kenyans.

The other suspects in the case are former Head of Public Service Francis Muthaura and journalist Joshua arap Sang.

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Characterised by disagreements

A review of the other cases handled by the court shows long preparatory phases, which are at times characterised by disagreements between the prosecutor and the defence.

For instance, trial of former Democratic Republic of Congo vice-president Jean-Pierre Bemba and Congolese warlord Germain Katanga Mathieu Ngudjolo started a year after the confirmation of their cases.

Speaking to journalists on the matter, Prof Kithure Kindiki, a member of Mr Ruto’s defence team during the confirmation of charges hearings, said the trial will mostly likely start after a year.

He said the trials could start after January next year.

During the preparatory phase, the prosecutor will be required to give the list of his witnesses to the defence and a decision will be made if there are any concerns about their security.

Mr Abdallah also advised politicians seeking to have the cases against Kenyans at The Hague to engage the International Criminal Court directly instead of making public declarations.
But he cautions that only the suspects, the prosecutor, judges, victims have a say on the legal procedures. And the arguments must be made in court.

“A request must be submitted to the judges for them to have an impact on the process in accordance with the court rules. Declarations in political meetings or media have no impact.”

He emphasised the political declarations cannot be used as the basis to postpone criminal proceedings.

“Political considerations cannot be taken into account in a legal process. A legal process follows its own rules,” he said in response to a declaration by leaders from Central Kenya that they will petition the court to delay the case until after the next General Election.

In a declaration issued after a conference in Limuru two weeks ago, the leaders indicated that they would collect more than 2 million signatures to support the appeal before the ICC and, if necessary, take the matter before the United Nations General Assembly for adjudication (see advert on Page 31).

They argued that the trial against presidential aspirants be held after the next elections saying doing otherwise would deny Kenyans their right to “elect leaders of our choice.”

“We petition the ICC to postpone the trial in the interest of having peaceful elections, to a period after the forthcoming General Elections,” they said.

Mr Abdallah dismissed claims that the court was working with the West to re-arrange Kenya’s politics in favour of one of the presidential candidates.

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“It is not for the ICC to discuss Kenyan politics. Kenya has signed the Rome Statute and that is a strong statement about its desire to end impunity and has an obligation to fully cooperate with the ICC,” he said.

“That obligation does not depend on an individual or political appointments. The ICC is protecting victims of gross crimes and preventing them from occurring. There are thousands of Kenyan victims. The suspects are not victims and there is no conspiracy against any of them.”

He said intervention by the UN Security Council can stop the cases, but Kenya would be hard-pressed to demonstrate that it is keen to try the suspects for the alleged crimes.

Is binding

Article 16 of the Rome Statute provides an avenue for countries to petition the UN Security Council to defer a case for 12 months. The decision of the council is binding to the court.

An effort spearheaded by Vice-President Kalonzo Musyoka in 2010 was rejected by the council. The argument was that Kenya had not demonstrated that it could conduct genuine proceedings that met international standards of criminal justice.

Critics of the diplomatic effort also projected it as a scheme to shield the Ocampo suspects from prosecution.

Kenya also launched court action challenging the admissibility of the cases but the ICC judges dismissed the case. The state had argued that, with a reformed judiciary and independent prosecutor, it was willing and capable of trying the suspects at home.

But the judges said the cases could only be transferred to Kenya if there was an ongoing process to bring the suspects to account, not a mere promise to do so in the future.

With the trial chamber set up, Kenya’s only option of stopping the case – other than the jurisdiction appeal – is to set up a local tribunal to prosecute the suspects and ask for transfer of the cases from the ICC.

But certain conditions must be met. One, there must be national prosecutions of the same suspects for similar crimes (as those they are facing at the ICC).

Two, the trials must not appear stage-managed to shield the accused.

Further, the proceedings must be conducted independently and impartially and meet international standards of justice.