By KIPCHUMBA SOME ksome@ke.nationmedia.co.ke
Posted Saturday, February 25 2012 at 21:15
Posted Saturday, February 25 2012 at 21:15
The team of legal experts appointed to advise the government on the decision of the International Criminal Court to commit four post-election violence suspects to trial is embroiled in leadership wrangles.
Email correspondence seen by the Sunday Nation indicates that the Kenyan and foreign lawyers also disagree over the extent of their mandate.
While the foreign lawyers — Sir Geoffrey Nice and Mr Rodney Dixon from the United Kingdom — are of the opinion that the team should specifically deal with the ICC issue, local lawyers contend that their mandate is broader.
“We interpreted our brief more broadly than Sir Geoffrey set out in his earlier email and considered more options than the ones you have outlined in your email,” wrote committee member Betty Murungi in reply to an email by Mr Dixon.
He had suggested that given the committee’s tight deadline, it ought to deal specifically with how the government can deal with the ICC issue, but some committee members felt that they ought to give “blunt and truthful” advice about the issue.
“We do owe it to them (the public) to ensure that what we recommend is helpful to them generally and does not serve only the parochial interest of some people,” wrote Mr Paul Mwangi, Prime Minister Raila Odinga’s advisor on Coalition Affairs.
Sir Geoffrey, Mr Dixon, Mr Fred Ojiambo, Mr Joe Okwach, Mr Waweru Gatonye, Ms Betty Murungi, Ms Lucy Kambuni, Ms Grace Wakio, Dr Henry Mutai and Dr Godfrey Musila comprise the team. (READ:Githu’s ICC team keeps tight lid on its agenda)
The secretariat is led by Mr Ahmed Mohamed and Ms Caroline Wamaitha from the State Law Office. Mr Mwangi joined the team in his capacity as Mr Odinga’s advisor.
The team was named by Attorney-General Githu Muigai on orders from President Kibaki following the ICC ruling to commit to trial Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former head of Public Service Francis Muthaura and journalist Joshua arap Sang.
The four will stand trial for allegedly orchestrating a deadly wave of violence after the country’s disputed 2007 presidential election result.
Kenyan jurisdiction
The government has made several attempts to have the cases quashed or transferred to Kenyan jurisdiction.
The legal committee is its latest effort, but its work is now in jeopardy as the wrangling between local and foreign lawyers continues.
The local lawyers question suggestions by Mr Dixon that the government should once again challenge the admissibility of the cases at the ICC.
“In respect of a specific option for government action, I’m of the view that we should still give serious consideration to the government seeking to intervene in the appeals proceedings that are ongoing,” wrote Mr Dixon.
“Such submissions would be consistent with the government’s stated position that Kenya is not a failed state, that it is committed to investigating all PEV allegations and that it has the capacity to do so.”
However, Mr Mwangi replied that such an appeal might turn out to be a waste of public money.
“We cannot tell the government to undertake another admissibility challenge for the simple reason that the right exists without regard to the question whether it will succeed or not.”
He also alluded that Sir Geoffrey’s desire to chair the committee might be motivated by personal financial interests.
“As the chairman, there would be a real conflict of interest in the sense that you are still under a retainer by the Government of Kenya, and whatever recommendations we would make could affect the cessation, continuation or expansion of that retainer.”
Sir Geoffrey and Mr Dixon led the government’s failed admissibility challenge against The Hague cases last year and have since been put on a retainer as the government’s advocates on record at ICC.
Some of the committee members are also unhappy with it being chaired by a foreigner. Sir Geoffrey said that he was nominated to chair the committee by Mr Muigai, a view challenged by Mr Mwangi.
“This being a government committee composed mainly of local lawyers, the chairmanship by a foreign lawyer was going to affect the regard with which the general Kenyan public would appreciate the existence of this committee and the independence and patriotism with which we discharge our mandate.”
“Our work cannot be confidential to the point that I can fail to fully brief the Prime Minister on our proceedings. For us, and particularly for you in other respects, he is the client,” he tersely wrote back.Sir Geoffrey has also questioned why Mr Mwangi informed Mr Odinga of the committee’s deliberations, which are supposed to be confidential.
Mr Muigai could not be reached for comment yesterday as his phone was switched off. for the better part of the day.
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