By ALPHONCE SHIUNDU ashiundu@ke.nationmedia.com and EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Saturday, April 28 2012 at 22:30
Posted Saturday, April 28 2012 at 22:30
President Kibaki has launched a last ditch campaign to forestall the cases of four Kenyans facing crimes against humanity charges at the International Criminal Court.
His new frontier is a diplomatic campaign to have the accused — Deputy Prime Minister Uhuru Kenyatta, former head of Public Service Francis Muthaura, Eldoret North MP William Ruto and radio journalist Joshua Sang — tried by the Arusha-based East Africa Court of Justice.
President Kibaki on Saturday successfully lobbied his peers during an Extraordinary Summit of Heads of State of East African Community in Tanzania which he chaired, to pass a resolution to extend the jurisdiction of the court to cover crimes against humanity.
A dispatch by his press team said the summit welcomed the resolution to extend jurisdiction of the court and “directed the Council of Ministers to consider the matter by the end of May 2012 and report to an extraordinary summit to be convened immediately thereafter”.
The effort comes barely three days after members of the East African Legislative Assembly sitting in Nairobi passed a resolution to have the cases pulled out of The Hague and transferred to the Arusha-based court, though it has no jurisdiction over criminal matters. (READ: Assembly backs local trial of Ocampo Four)
The regional MPs expressed confidence that their resolution, plus a push to amend the clause in the East Africa Community Treaty forming the regional court, to allow it handle criminal matters, will be ratified in Saturday’s meeting at Ngurdoto in Arusha.
Though the EALA resolution was not listed in the summit’s official agenda, the MPs were optimistic that it would somehow be discussed, a move attributable to intense lobbying by Kenya.
Mr Kenyatta and Mr Ruto have indicated that regardless of the January 23 order by the ICC pre-trial judges committing them for trial, they intend to contest the presidential elections because the Constitution does not bar an individual facing legal proceedings from doing so.
The power elite around President Kibaki favours Mr Kenyatta to succeed him though the ICC matter has cast doubts over the DPM’s candidature.
The diplomatic campaign to save the four was re-reignited even as Chief Justice Willy Mutunga on Friday warned that requirements of Chapter Six of the Constitution on leadership and integrity will be fully enforced in the next election.
The chapter which demands that public officers bring integrity and honour to their offices as well as the country has been cited as a major hurdle between the two politicians and their presidential dream.
And it appears that even with the diplomatic efforts to delay the ICC trials and allow the two to run, the final decision on whether the suspects will be on the ballot paper will be made at home.
“That chapter talks about leadership across our society. Those of you running for office, whatever office, should know that if found to have been violent, or you have stolen votes or you brutalised voters chapter six will ensure that you will never run for political office again,” he told a meeting in Mombasa on Friday.
“Those running for office should read that chapter very carefully because if you are guilty it is the chapter that will make sure that you don’t run for any public office in this country,” he cautioned.
The CJ is also the president of the Supreme Court, the highest court in the land with original and exclusive jurisdiction over presidential election disputes.
However, lawyer George Kegoro argues that while the CJ’s announcement was logical and fair, the Judiciary cannot initiate the application of integrity standards on those seeking political office. (READ:New integrity bar should apply across the board)
He says it is the responsibility of Kenyans to initiate court action that would trigger decisions to implement the integrity standards.
“The courts must wait for cases on integrity to be brought before them before they can enforce the standards.
“Because of self-interest, the political leadership on which the initiation of integrity standards depends is reluctant to provide championship for such efforts.”
The newest campaign against the ICC cases, came this week from President Kibaki when he made his maiden State of the Nation address in Parliament.
The President broke his 500-day silence on the House resolution to have Kenya break links with the ICC and recalled “the fact that the House passed a motion that Kenya pulls out of the ICC”.
It was these words which confirmed the speculation that has been rife, that the government is not keen to hand over the Ocampo Four, when their day in the Netherlands-based court finally comes.
With the trial chamber having been set up, Kenya’s only option of stopping the cases — other than the appeal on jurisdiction — is to set up a local tribunal to prosecute the suspects and ask for transfer of the cases from the ICC.
But certain conditions must be met. One, there must be national prosecutions of the same suspects for similar crimes (as those they are facing at the ICC).
Secondly, the trials must not appear stage-managed to shield the accused individuals. Further, the proceedings must be conducted independently or impartially and they must meet accepted international standards of justice.
On the other hand, the UN Security Council can vote to postpone the trials for a year if it is convinced that the continuation of the cases is a threat to regional and international peace and security.
The government has explored these options but failed. Global non-governmental watchdog Human Rights Watch warned on Friday that there were plans afoot to scuttle the justice process since the government has shown no adequate commitment to handle any trials.
“Notwithstanding President Kibaki’s pledge in his State of the Nation address to pursue a local justice mechanism, new efforts are afoot to derail the ICC cases. (DOWNLOAD: Kibaki's State of the Nation speech)
“Recent comments by other members of government and parliament have suggested that the two ICC cases against four prominent Kenyans accused of committing crimes against humanity during the post-election violence should be ‘brought back to Kenya,’” the lobby said in a statement.
Mr Davis Malombe, deputy executive director of the Kenya Human Rights Commission said: “We welcome President Kibaki’s statement that Kenya still wishes to establish a local mechanism to prosecute international crimes, and it should be translated into concrete action in the form of a credible mechanism that will vigorously pursue and bring to justice other perpetrators not currently facing trial at the ICC.”
He, however, added that “politicians’ recent statements about bringing the ICC cases back to Kenya raise concerns that the proposed local mechanism could be a whitewash”.
A day after the President’s parliamentary address, Vice-President Kalonzo Musyoka stepped up calls for a “local solution”, with a poignant revelation that “serious consultations are underway which will make it possible for us to have the local option”.
But even more confusing was what appears to be a new ODM position on The Hague option.
Last Saturday, Cabinet minister and ODM stalwart Fred Gumo, a key ally of Prime Minister Raila Odinga, walked into a meeting convened by his party’s rivals in Kitale and in presence of Mr Kenyatta and Mr Ruto declared that the ICC trials should be transferred to Kenya before the elections.
Therefore, in just a week, political forces appear to have closed ranks about the fate of the Ocampo Four and are all scrambling for a solution that would please the suspects.
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