Ocampo may go for Kibaki and Raila 
 
By SAMWEL KUMBA and FRED OLUOCH,

In Summary

Hidden legal print shows why Kibaki and Raila could face trial over poll violence

President Kibaki and Prime Minister Raila Odinga may be called to account for atrocities committed during the post-election violence, should the International Criminal Court take up the matter.

The ICC chief prosecutor, Louis Moreno-Ocampo, could task the two leaders to explain what they knew about the violence that left more than 1,300 people dead and over 600,000 displaced, and what they did to stop it.

The ICC law requires the two, being in charge of government and their supporters, to have done everything possible to avert any crimes against humanity perpetrated by their followers and security agents.

But whether or not the two will be taken to task for their role in the post-election violence, and if they will be required to testify when the trials begin, remains to be seen.

Nevertheless, these are some of the issues emerging as Kenyans grapple with the question of whether to set up a local tribunal to try the suspected perpetrators of the violence or await the international law to take its course from The Hague. 

The suspects

On Friday, the ICC prosecutor gave Kenya 12 months to set up a special tribunal to try the suspects, saying his was a court of last resort.

A statement released after a meeting of Kenyan ministers and Mr Moreno-Ocampo said: “If there is no parliamentary agreement, and in accordance with the Kenya Government’s commitment to end impunity of those responsible for the most serious crimes, the Government of Kenya will refer the situation to the prosecutor in accordance with Article 14 of the Rome Statute.”

Opponents of the local tribunal are silently pushing the position that President Kibaki and Mr Odinga must take the blame for the violence.

They are convinced that a local tribunal will let the two principals off the hook, despite the fact that their stiff competition for the country’s leadership was the cause of the violence.

This raises prospects that should the country opt for the ICC, the two leaders will at some point be forced to testify.

A close look at the Rome Statute — the international law that set up the ICC — shows that the President and the Prime Minister are likely to be drawn into the trial should the cases end up there.

Article 27 of the statute states that one’s position in government does not guarantee any immunity from prosecution. But Article 28 is the one that would nail the principals, especially if those working under them choose to pass the blame.

The ICC law – to which Kenya is a signatory – states: “A superior shall be criminally responsible for crimes within the jurisdiction of the court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

The superior either knew, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes;
The crimes concerned activities that were within the effective responsibility and control of the superior; and
The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

It is this law that attracted unfavourable attention from some countries, specifically Libya, at the African Union Heads of State summit this week. It was touched off by a warrant of arrest issued by the ICC against Sudanese President Omar al-Bashir.

On Saturday, AU ministers passed a resolution to deny the ICC cooperation regarding Mr Bashir. They argued that the chaos in Darfur, which the arrest was meant to address, might escalate if it is executed.

A survey by the Sunday Nation found that many Kenyan MPs are opposed to a local tribunal on the basis that they do not trust local institutions to effectively complete the task.

Should the bill – which Attorney-General Amos Wako and Justice minister Mutula Kilonzo intend to amend to attract support from Parliament – fail, it will be the first step in the journey to The Hague.

On Friday, Mr Wako, Mr Kilonzo and Lands minister James Orengo signed a commitment that should the local process not kick off by September, the government would turn over the case to the ICC. Mr Kilonzo told the Sunday Nation he was happy with the deal and hoped the country will follow through.

On return from the Geneva trip, Mr Orengo said Mr Moreno-Ocampo had further requested the government to institute comprehensive mechanisms to protect victims and witnesses.

The witness protection clause inserted by the prosecutor, the minister said, was key to the establishment of a special tribunal.

“Without these, the ICC will intervene,” the minister told the press in Kisumu yesterday. According to Mr Orengo, the ICC is keenly following the redrafting of the bill seeking to establish a special tribunal to ensure that the welfare of witnesses and victims is taken care of.

Give evidence

Kenya already has the Witness Protection Act, 2006, which provides protection to a person who has given or agreed to give evidence on behalf of the state in a corruption case.

“If we fail to pilot a bill through Parliament for the prosecution of the suspects, then Kenya will refer the matter to ICC,” he said.

Deputy Prime Minister Musalia Mudavadi said on Saturday that the country was walking a tight rope in deciding whether to try the suspects locally or internationally. He said although the international court had given the country more time to sort out the issue, the decision would not be easy.

“We ask ourselves who will investigate the police who killed and how to protect those who testify before the commission,” the DPM said.

Already, the ICC has started preliminary investigations. Despite the ongoing lobbying by the President and the PM to convince MPs to pass the Special Tribunal Bill for Kenya, 2009 that was rejected by Parliament last year, there is a growing fear that it will target only the small players and that it will be under the control of the two principals.

Nominated MP George Nyamweya argued that it is possible to establish an independent local tribunal. But the problem, he said, is that most politicians are “irrational and emotional”.

However, he added that if the bill to establish the tribunal is brought to Parliament simply because that is what the President and the PM want, then it will not pass.

An MP who did not want to be quoted discussing his superiors said that the trip to The Hague by Mr Kilonzo, Mr Orengo and Mr Wako was an indication that the top leadership is slowly accepting that they might have to settle for the ICC option. 

Since the violence, the two main opponents in the 2007 election—the Party of National Unity and the Orange Democratic Movement – have been trading accusations over which party was responsible for the chaos.

ODM has always maintained that the violence was as a result of election malpractices and rigging that were perpetrated by their opponents, while PNU argues that ODM resorted to violence after losing the elections.

Investigations reveal that a proposal for an amnesty clause to be included into the Bill before it is taken back to Parliament, has also been rejected because the international community will not accept a process that ends up pardoning the suspected perpetrators of the violence.

Additional reporting by Walter Menya, Dan Otieno and John Shilitsa

Source:http://www.nation.co.ke/News/-/1056/619194/-/view/printVersion/-/fcliiw/-/index.html