OCAMPO

An announcement expected this week could change Kenya’s political landscape dramatically.

The country now is in the ‘long’ week in which the International Criminal Court’s Pre-Trial Chamber delivers a ruling on the ‘Kenya 20’.

This is a list of prominent politicians, businessmen and influence peddlers who Chief Prosecutor Luis Moreno-Ocampo wants to investigate and prosecute over Kenya’s vilest post-election crimes. It is believed a ruling on his request could come as early as Wednesday.
ICC Chief Prosecutor Luis Moreno-Ocampo


If ICC rules Mr Moreno-Ocampo, who presented evidence he has to the three-judge Pre-Trial Chamber bench, can go ahead, then it will not be long before their names are public knowledge. The list is believed to include Cabinet ministers.

Last week Moreno-Ocampo was optimistic the ruling would be in his favour. "We shall respect rights of the accused and will let them talk to us,’’ he said.

Justice Minister Mutula Kilonzo on Sunday said he was also waiting to hear ICC’s decision.

"As you know, my work is done. I did everything that I was supposed to do and the rest now lies with Ocampo and the court," he added.

In a telephone interview with The Standard, Mutula said Kenyans have waited for too long to know the verdict. "I can assure you that the Government will cooperate with the ICC in whatever decision it makes. If it is a ‘Yes’, then we shall cooperate with the investigations," he added.

The minister said the country needed to move forward, whether the verdict to investigate the key perpetrators of the violence is granted or not. "If ICC allows investigations and prosecutions to be carried out, then the Attorney General’s office and that of Internal Security will be instrumental in guaranteeing witness protection, which falls under their dockets," he added.

Both parties

The closest Moreno-Ocampo came to hinting at who the suspects are was when he said they "were guided by political objectives to retain or gain power".

He revealed they were from both President Kibaki’s Party of National Unity and Prime Minister Raila Odinga’s Orange Democratic Movement.

"They utilised their personal, Government, business and tribal networks to commit the crimes. They implemented their policy with the involvement of a number of State officers and public and private institutions, such as Members of Parliament, senior Government officers, the police force and youth gangs," he is on record saying. The post-election violence claimed about 1,500 lives and led to displacement of hundreds of thousands.

Last month, ICC judges of Pre-Trial Chamber II requested Moreno-Ocampo to provide clarification and additional information on the Kenyan process not later than Wednesday this week for them to decide whether or not to authorise him to begin an investigation.

Mutula also argued unless the country decides there was need for local tribunal to try minor offenders, his work on justice for post-election victims was over.

Last week, just before flying out from the country, Chief Mediator of the Grand Coalition power sharing deal Dr Kofi Annan indicated the ICC judges may make their ruling on the Kenya case before Wednesday.

Moreno-Ocampo decided to act on the Kenyan situation following failure by the Government to persuade Parliament to establish a special tribunal that would have heard cases against the suspected masterminds.

Top businessmen considered to be politically connected as well as top security officials might be indicted if evidence is adduced against them.

Procedural manoeuvre

Kenya National Commission on Human Rights is currently hosting about three witnesses who are expected to testify if ICC judges give Moreno-Ocampo the go-ahead.

The prosecutor, however, insists ICC has no witnesses in Kenya but that is believed to be a procedural manoeuver because the Pre-Trial Chamber judges are yet to authorise investigations and any direct moves to gather evidence by the ICC would be unprocedural.

According to the Rome Statute, the Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. Kenya ratified the Rome Statute on March 15, 2005 becoming a State Party on June 1, 2005.

Last November ICC presidency assigned Kenya’s case to three Pre-Trial Chamber II judges: Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser.

For the prosecutor to commence investigation proprio motu (on his own impulse) he must first obtain authorisation from the judges.

That is what the Prosecutor sought for on November 26 last year when he filed his request together with 40 appended annexes in approximately 1,500 pages.