Will straight shooting Mutula survive onslaught?

The Government’s handling of the ICC process and the slippery Constitution implementation has put Justice Minister Mutula Kilonzo in a spot. The Standard On Sunday’s Senior Political Writer, OSCAR OBONYO, interviewed him on a wide range of issues. Here are excerpts:

OUESTION: Let us begin with the latest row on the President’s appointments of Attorney General and Chief Justice. What’s your view?

ANSWER: If this is the way to go then we didn’t have to wait for six months? If the only requirement was consultation between the principals, did we need any other law or did we have to expose our country to current shenanigans, including engaging in shuttle diplomacy over the ICC process? The President and Premier ought to have made the appointments earlier.

Some argue that the due process was followed in the nominations.

A: Section 24 (Schedule 6) of the Constitution empowers the President to appoint the CJ following the time limit set for of the current one. In nominating the CJ the President should consider advertising the vacancy to satisfy Article 10 and Chapter 6 of the Constitution on public participation and inclusiveness so that all interested persons may apply.

Just how far can ODM push the argument that the PM was not consulted on the nominations?

The demand the President and Prime Minister consult does not mean they have to agree and that is why there is the additional need for parliamentary approval. My fear would be if the appointments do not receive overwhelming support, considering that Kenyans have the perception that our criminal justice system is incompetent.

Why are you opposed to the Vice-President’s shuttle diplomacy to seek support of the AU to pull out of the Rome Statute or defer the cases?

There is a difference between opposition and expression of legal policy. Article 16 of the Rome Statute does not recognise any continent, whether Africa or otherwise, as an organ for managing the Rome Statute. It recognises Chapter 7 of the Charter for the United Nations and designates the Security Council as the only organ that can seek deferral during either investigation or prosecution. To the extent that Prosecutor Luis Ocampo’s investigation is completed and to the extent that no prosecution has commenced deferral does not arise at this point. Moreover, I am not aware of any Cabinet discussion approving either pulling out of the Rome Statute or seeking the UN Security Council resolution for deferral of the cases. And as ODM-Kenya Secretary General, my party did not participate in post-election violence. I therefore have a duty to question my party leader if it seems like the shuttles may tarnish his image or that of the party on PEV issues.

And for the apparent divergent views, do you consider yourself a rebel (within Cabinet and ODM-K) and do you see your replacement coming soon?

I am not a rebel. I am a problem solver, a go-getter, a facilitator and a visionary. If I were reprimanded or replaced for that, it would not bother me.

No doubt, you are serving as Justice Minister at a crucial transitional moment. Briefly, what are some of your challenges?

I have not faced any insurmountable challenges. I have applied my training, experience and temperament to facilitate Kenyans to make decisions for themselves. Entrenched interests and positions, including impunity, corruption, and horse-trading remain challenges for Kenyans not myself since decisions lie ultimately with them after the Constitution was promulgated.

What about the delicate balance of serving as Justice minister and Secretary General of ODM-Kenya, a party, which like any other, has vested political interests?

I have not had a problem balancing between my political and legal duty and luckily my party has not interfered with my decisions as a minister either. You must have realised I do not attend political rallies and will not do so until the current transitional tasks are completed.

What effect will pulling out of the Rome Statute have on Kenya?

It would have severe consequences, especially if we also repeal the International Crimes Act. These crimes can only be prosecuted under the Rome Statute or Section 8 of the Constitution. The third option is International Customary Law, which would make Kenyans vulnerable to arbitrary arrests or prosecutions in all manner of states. We would not enjoy the protection of due process of law under the Statute or Kenyan law. We would be like orphans.

What is the difference between deferral and referral and what are the benefits and challenges of either?

The Rome Statute has no provision for referral. But Article 16 provides for deferral if the Security Council so resolves. But such a deferral can only be for twelve (12) months and only occurs during investigations or prosecution. The popular expression during the debate for Local Tribunal that "Don’t be vague it is Hague" dictated that deferral was not an option for Kenya during Ocampo’s investigations.

Is the notion of setting up a local tribunal to try the Ocampo six still viable?

Yes. Under the Constitution what is required is a judicial mechanism under Section 8 of Kenya’s International Crimes Act. However, a determination of whether international crime occurred in Kenya is yet to be made. This explains why at this point I insist on the ruling by ICC on Ocampo’s application of last December.

How easy or hard is it to convince the UN Security Council that Kenya is capable of trying the PEV suspects?

Hard. The refusal to set up a local judicial mechanism by Parliament followed by the resolution to withdraw from the ICC, together with the threatened Bill for repealing the International Crimes Act makes it next to impossible to obtain a unanimous resolution as required by the Security Council at this point. Moreover, Kenya must make a case that proceeding with the case poses a danger to international peace.

You are on record stating your fears that 2012 politics could derail the constitutional implementation. Please substantiate.

The ongoing premature campaigns for 2012 remain a main challenge to Constitution implementation.

Finally, where should Kenyans expect to see Mutula come 2013?

Ask God. I am not declaring interest in a political seat yet because as you understand, political parties fall under my docket and I must act fairly to all.

I do not want to suffer the fate of my predecessor whose docket got a beating the moment she declared her interest in the presidency.