Kibaki joins EAC fray to refer The Hague cases to Arusha court

By ALEX NDEGWA

The Government is working to persuade the International Criminal Court to give up jurisdiction over two Kenya cases set to go to full trial soon.

Recent developments and statements by senior officials suggest this effort has now gone into overdrive. On Saturday, the 10th Extraordinary Summit of East African Community Heads of State sanctioned efforts to have The Hague cases referred to the East African Court of Justice. This follows the ICC’s reluctance to consider sending the cases against four Kenyans to a local court.

Deputy Prime Minister Uhuru Kenyatta (second left) and Former Head of Civil Service Francis Muthaura when they appeared before the International Criminal Court, The Hague. [PHOTO: FILE/ STANDARD]

The EAC meeting, chaired by President Mwai Kibaki, closed with a resolution to extend the jurisdiction of the East African Court of Justice to cover crimes against humanity. This opens the way for the ICC accused to be tried in Arusha, Tanzania. In a statement read by EAC Secretary General Richard Sezibera, the Summit welcomed the resolution to extend jurisdiction of the EACJ and directed the Council of Ministers to consider the matter by the end of May, and report to an Extraordinary Summit to be convened immediately thereafter.

The Government’s strategy apparently is to re-open investigations and prosecutions into some 5,000 pending cases on the 2008 post-election violence to show it is serious on punishing those implicated in the crimes. Previously, the ICC has rejected the Government’s application to refer the cases, saying Kenyan authorities lack the political will to ensure credible prosecutions.

The Director of Public Prosecutions Keriako Tobiko has moved to implement recommendations by a panel of lawyers, who advised the Government after the ICC confirmed the charges against the ‘Ocampo Four’.

Attorney General Githu Muigai has since briefed the President on the legal opinion, which suggested the appointment of an independent Special Prosecutor to try 2008 post-poll violence cases, including those involving the four.

Deputy Prime Minister Uhuru Kenyatta, former Head of Civil Service Francis Muthaura, Eldoret North MP William Ruto, and radio journalist Joshua arap Sang are facing crimes against humanity charges.

On Saturday, Tobiko indicated he planned to appoint special prosecutors, including international experts, to handle the over 5,000 pending cases. To ensure their credibility, the DPP said he would consult the ICC, the Law Society of Kenya, and the International Crimes Tribunal for Rwanda to identify competent individuals.

President Kibaki signalled the renewed efforts in an address to Parliament on Tuesday. He pointedly recalled the House endorsed a Motion calling for the withdrawal of Kenya from ICC and stressed his Government will continue pushing for local trials.

Delay setting trial date

The following day Vice- President Kalonzo Musyoka told Parliament he was privy to "serious consultations" to stop trials against the four Kenyans at The Hague. As if on cue, members of the East African Legislative Assembly sitting in Nairobi, voted for the trials to be referred to the Arusha-based EACJ.

Uhuru and Muthaura have asked the Trial Chamber to delay setting a trial date until appeals on jurisdiction are determined.

In the law courts, two Kenyans are seeking to stop the ICC from trying the four Kenyans.

They have sought orders barring the four from co-operating with the ICC, arguing the process is unfair since the contents of the controversial Waki ‘envelope’ had not been made public.

Police Commissioner Mathew Iteere has urged the Government to ask the ICC to furnish the police with the evidence against the Ocampo Four, so the police can act on the files. Last October, the Government petitioned the Pre-Trial Chamber to turn over the evidence against the suspects, including all confidential un-redacted materials provided by the court’s Chief Prosecutor Luis Moreno-Ocampo.

In its second request for assistance and co-operation, Kenya said the evidence would help on-going national investigations and prosecutions into post- election violence.

The application filed by UK lawyers Geoffrey Nice and Rodney Dixon cited the need to fast-track over 3,500 pending investigations, which included the then six suspects before the ICC that "must be fast-tracked".

In Parliament Tuesday, President Kibaki abandoned his usual style to avoid controversial matters saying: "I am cognizant of the fact that this House passed a Motion that (calls for) Kenya to pull out of ICC. Victims of post-election violence deserve justice. Kenyans facing trials also deserve a fair and legal hearing. In the meantime I call on Kenyans to remain calm even as we pursue option of having a local mechanism to deal with any international crimes."

Kalonzo echoed the President’s sentiments to consider "all the options" adding it was in the best interest of the nation to have the cases tried locally. "I know that serious consultations are under way, which will make it possible for us to have the local option," the VP said.

"This House missed that golden opportunity, but it is important for all of us to think backwards and take corrective action where we know it is in the best interest of this nation to have matters done locally."

Unsuccessfully lobbied

Gichugu MP Martha Karua, however, has accused the Government of placing its machinery at the disposal of the suspects, while not doing the same for victims. She said a local tribunal would only be credible if it had international experts because "this is a highly emotive political issue".

Karua recalled in 2009 as Justice minister she unsuccessfully lobbied for the passage of the Bill to establish the local tribunal.

"I personally begged the President and Prime Minister to come to the House and contribute in support of the Bill. They both failed to do so and merely came to vote," she said.