Kibaki, Raila change tune over poll chaos trial

By Alex Ndegwa and Sam Otieno

The International Criminal Court (ICC) set in motion the wheels of justice to try perpetrators of post-election violence as its Chief Prosecutor Luis Moreno-Ocampo indicated trials could begin in July next year.

He also indicated President Kibaki and Prime Minister Raila Odinga had agreed to facilitate arrests of the indicted, irrespective of their positions. This signals a change of heart barely days after reports indicated the two leaders were unwilling to sacrifice their political allies for fear of a political backlash.

Moreno-Ocampo even hinted the suspects could be taken to Tanzania instead of The Hague. As the seat of the International Criminal Tribunal for Rwanda, which is set to wound up soon, Arusha, he suggested, has the capacity and facilities to try the Kenyan suspects.

ICC Chief Prosecutor Luis Moreno-Ocampo. He believes he has a strong case against a few people for crimes committed during Kenya’s post-election violence and he will move fast to avoid a repeat at the 2012 election.

Three pre-trial judges were appointed to determine whether the ICC should commence investigations into the Kenya case. The development came after Ocampo left the country at the end of his three-day visit with a declaration he would hasten the trials.

He said he plans to present two to three cases for trial possibly by July, next year, so that Kenya would go to the next General Election, due in 2012, without fear of violence.

“Everyone is worried about the next General Election. That’s why I understand the importance of speed,” he told a news conference, at the Windsor Golf and Country Club, on Saturday.

If his request is accepted, Moreno-Ocampo said, then he will begin work next month. After the Thursday meeting with Kibaki and Raila, the prosecutor announced he would be asking ICC judges to open investigations.

“We expect to do the cases in four, five or six months; that is our style and that is what we are trying to do,” he added. Ocampo said he has a strong case against masterminds of the violence and exuded confidence ICC judges would back his probe.

Meet victims

As soon as the judges open investigations, the prosecutor said, he would meet the victims of the violence. Officially, some 1,300 people were reported killed and more than 300,000 displaced.

Procedurally, the prosecutor must obtain the court’s permission to open an investigation upon proof crimes committed are within the jurisdiction of the ICC and that there are no relevant national proceedings in connection with those offences.

The presidency of the ICC on Friday, a day after receipt of the prosecutor’s request, assigned the case to Pre-Trial Chamber II, which comprises a Bulgarian Judge Ekaterina Trendafilova, Hans-Peter Kaul (Germany) and Cuno Tarfusser (Italy). The President, Justice Sang-Hyun Song, signed the notification dated November 6.

With the exception of Tarfusser who was appointed in March this year, the other two judges have served at the ICC for six years.

Under the Rome Statute, the prosecutor can decide proprio motu (on his own) to initiate an investigation as an option to either a State referral or one by a resolution of the UN Security Council.

Crimes against humanity

Ocampo, who has stated he considered the atrocities committed in Kenya crimes against humanity, said he has solid evidence based on the Waki Report and other international reports.

“I think I have a strong case because the Waki Commission did a very good report, and there are other reports from the UN and human rights groups. I think I have a very strong case,” he said. He said investigators were analysing the information in The Hague.

He, however, stressed that he will complement the Waki Report with his own investigations, adding names suggested by the Waki Commission are not necessarily binding to him.

In July, Chief Mediator Kofi Annan handed over to Ocampo the envelope containing the names of high profile individuals — among them at least four Cabinet ministers — who are believed to bear the greatest responsibility for the mayhem.

On Saturday, the prosecutor seemed to support the report, saying that there will “probably” be “two or three cases because there are different groups who committed the crimes and we will identify the most responsible of each group”.

Once sufficient evidence to establish criminal liability is gathered, he explained, he would request ICC judges to either issue summonses requesting the suspects to voluntarily appear before the court or issue warrants of arrest.

Once the arrest warrants are issued, he said, it is the duty of the Kenya police to enforce them. “The police have a duty and they are the only ones who can arrest people in Kenya and they have to do it. Kenya is a well organised State,” he said.

He added: “I don’t have any doubts that they can arrest people. Kenya is a beautiful country. They can do it, and they will do it if the judges tell them to.”

Ocampo said 25 to 30 witnesses are normally called for the process that will take five to six months.

He, however, said the identity of the witnesses would be confidential. “I will take statements in a very confidential way. No one will know who the witnesses are, where we are taking them. No one will know, that has to be made clear,” he said.

“I will come back to Kenya. I will go to the places where crimes occurred. I will meet the victims, and I will listen to them.”

In accordance with the Rome Statute, the victims of the crimes have a role in the proceedings. The victims’ role will also be part of their healing process.

“Victims can present their views and concerns and they can request reparations,” he said.

The prosecutor said his motivation to bring to justice post-poll chaos suspects is driven by the citizens’ quest for justice and desire to prevent a repeat of the violence. But he said to stamp out impunity a special local tribunal must be established to deal with other perpetrators who could be in hundreds.

Imanyara Bill

Parliament reopens on Tuesday and debate on a Bill by Central Imenti MP Gitobu Imanyara seeking to establish a local tribunal could be considered.

Imanyara told The Standard on Sunday on Saturday the Bill gives Kenyans hope that all suspects in the atrocities would be prosecuted. He said it was the responsibility of MPs to pass the Bill, which he reckoned would be key to the setting up of a local mechanism for trying a majority of post-election violence suspects.

The Government on Thursday declined to refer the Kenyan case to the ICC, prompting Ocampo to indicate he would seek approval from ICC Pre-Trial Chamber to begin investigations next month.

Imanyara welcomed the prosecutor’s arrival but blamed the Government for making the ICC Chief Prosecutor look like a prisoner. He said the prosecutor could not meet other interested groups such as civil society and victims because of Government interference.

He said he had secured an appointment with Ocampo for 4pm on Friday, but when he went to see him at his hotel, security officers blocked him. He said although the ICC was determined to deal with the suspects, he does not believe the Government will arrest the indicted.

source.standard.ke