From left: Eldoret North MP William Ruto, Deputy Prime Minister Uhuru Kenyatta, former head of civil service Francis Muthaura, and radio presenter Joshua arap Sang. Photo/FILE
By OLIVER MATHENGE omathenge@ke.nationmedia.com
Posted Friday, March 30 2012 at 22:30
Posted Friday, March 30 2012 at 22:30
The four Kenyans accused of masterminding the bloody post-2007 election violence have only one more realistic chance to have their trials moved to Kenya, an official of the International Criminal Court said on Friday.
ICC spokesman Fadi el Abdallah, who is in the country, said the government or the Ocampo Four can now file any applications in this regard with the Trial Chamber of judges constituted on Thursday to start the process of hearing their cases in The Hague.
Mr Uhuru Kenyatta, Mr Francis Muthaura, Mr William Ruto and Mr Joshua Sang face separate charges of directing violent attacks, including murder, rape and forced displacement, after a disputed presidential election that left 1,500 people dead and uprooted another 300,000 from their homes.
Should the trial proper open before any application is filed, the ICC official said, it would be the end of the suspects’ battle to bring the trial home unless the chamber determines that there are “exceptional circumstances” for accepting an application.
But Mr Abdallah said the government would all the same have to prove that it was investigating and prosecuting the four accused. No date has been set for trials expected to start in a matter of months.
A source close to one of the Ocampo Four speaking on the condition of anonymity said on Friday that he was aware of government determination to have the the cases tried locally.
“The government is working towards trying the cases locally, and details will likely emerge in the next few weeks,” he said.
He added that the replacement of former Justice minister Mutula Kilonzo with Saboti MP Eugene Wamalwa was part of the efforts to expedite the move by the government to try the cases locally. (READ:Kilonzo transfer linked to his stand on ICC cases)
“Mr Kilonzo was seen to be strong willed on having the Ocampo Four proceed to the Hague and could easily frustrate any efforts. He could not be trusted to push for the move to have the case go on locally,” he said.
Mr Kilonzo said on Friday that he was not aware of any plans by the government to challenge the admissibility of the cases while Mr Wamalwa was unreachable.
Attorney General Githu Muigai was unavailable for comment as he is out of the country.
A team of top lawyers appointed by the AG to advise the government told the government that it can lodge another admissibility challenge before the Trial Chamber. (READ: Githu’s ICC team keeps tight lid on its agenda)
It however warned in a report that ICC would reject such a challenge, as it did during the Pre-Trial stage, if the four accused were not being tried locally.
The team, which has advised the government to appoint a special prosecutor to deal with the post-election violence, also said that although this can be used to lodge the challenges, more needs to be done to qualify under “exceptional circumstances.”
The government would have to show that there are genuine and concrete investigations and prosecutions to cover the same individuals, the lawyers said in a report to President Kibaki last week.
On May 30, 2011, the Pre-Trial Chamber rejected a similar challenge as did the Appeals Chamber. (READ: Judges reject Kenya bid to save suspects)
On May 30, 2011, the Pre-Trial Chamber rejected a similar challenge as did the Appeals Chamber. (READ: Judges reject Kenya bid to save suspects)
Article 17 of the Rome Statutes says that the Court should determine that a case is inadmissible where it is being investigated or prosecuted by the State.
However, the judges can still find the case admissible before ICC if the government is seen to be “unwilling or unable genuinely to carry out the investigation or prosecution” or if the local process is meant to shield the suspect from facing prosecution for the crimes.
The Committee of lawyers said: “Any decision to make a further admissibility application would have to be based on the progress made by a Special Prosecutor’s work or that of any other investigative or prosecutorial agency.
If the accused make the admissibility challenge themselves, the government may be requested by the Court to provide information and observations about its national investigations and prosecutions and its national justice system.
If the admissibility challenge fails, the Ocampo Four’s only hope of not going through the ICC trials is if the Appeals Chamber rules in their favour on the Jurisdiction challenges lodged last month.
Additional reporting by Jacob Ng’etich
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