Ocampo’s 50-hour swoop

ICC chief Prosecutor Luis Moreno Ocampo. Photo/FILE

By OLIVER MATHENGE

The International Criminal Court prosecutor, Louis Moreno Ocampo, left Kenyans with a clear message – that The Hague process had officially begun. During his three-day visit, the ICC prosecutor ensured that the government understood what was to happen next as the ICC president in The Hague had appointed a three-judge bench to determine the fate of masterminds of the post-election violence.

From touching down at the Jomo Kenyatta International Airport at 7.30 a.m. on Thursday to his departure on Saturday at 9 a.m., Mr Moreno Ocampo demonstrated how swiftly the ICC was ready to deal with the Kenyan situation. He was spirited to the Windsor Hotel where he had breakfast. He then he met Kenyan authorities, including President Kibaki and Prime Minister Raila Odinga at Harambee House.

The two principals declined to make a government self-referral to the ICC and left it to the prosecutor to use his other option – the pre-trial chamber. Mr Moreno Ocampo was then whisked to State House for lunch after which he retreated to his hotel where he is believed to have contacted Judge Sang-Hyun Song, the court’s president.

While he was touring the Nairobi National Park and meeting diplomats at the United Nations complex on Friday, Mr Sang-Hyun appointed a three-judge bench that will consider his request. And at the 7.30 a.m. press conference on Saturday, Mr Moreno Ocampo underscored the urgency with which the ICC was acting on the Kenyan case.

The prosecutor indicated that should the judges authorise the opening of the investigation, he will ensure that this “proceeds expeditiously”. This decision, the Sunday Nation later learnt, is likely to come in as early as the second week of December since the ICC breaks for its winter recess on December 12.

“Everyone is worried of the next election in Kenya. I understand the importance of speed, and I am working to be sure that during 2010 we will be able to complete the investigations and to define who the accused are, they have to face justice and you can have a peaceful election,” Mr Moreno Ocampo said.

According to ICC procedures, Mr Moreno Ocampo’s request to the pre-trial chamber has to be determined within 30 days. The judges dealing with the Kenya situation are Hans-Peter Kaul, who is also the ICC second vice-president, Cuno Tarfusser and Ekaterina Trendafilova. The move to constitute the chamber signified that ICC was ready to move swiftly, coming only a day after the government declined to formally refer the case to the ICC over last year’s post-election violence.

In another strong indicator that the ICC wants to speed up the process was given by Mr Moreno Ocampo who said that “two or three cases” would come up for trial with the next “four to six months”. Calculation shows that the Kenyan trials could start by July next year.

In their determination, ICC judges will either grant him the authority to start investigations in Kenya, reject his request or ask him for more information. A statement from The Hague said Mr Moreno Ocampo had on Thursday – the same day he met the Kenya authorities – written to Judge Sang-Hyun informing him of his intention to request authority to launch investigations in Kenya.

“The (ICC) presidency had received from the prosecutor a letter, dated 5 November, 2009, indicating his intention to submit a request for the authorisation of an investigation into that situation considering that “there is a reasonable basis to proceed with an investigation into the situation in the Republic of Kenya in relation to the post-election violence of 2007-2008”,” the statement read in part.

On Thursday, Mr Moreno Ocampo flew to Nairobi to meet President Kibaki and Prime Minister Raila Odinga and informed them of what he planned to do next about the Kenyan situation. Before leaving for South Africa on Saturday, he said the two principals had promised to cooperate with the ICC, which he added would be the greatest democratic test for the coalition government.

Intentions clear

At an early morning press conference, Mr Moreno Ocampo made his intentions clear, indicating that he was determined “to present two or three cases against those persons considered the most responsible” to the ICC. The swiftness with which the ICC is acting is likely to raise political temperatures in the country due to some earlier misconceived notion that The Hague process is slow.

The first indictment can be expected in early 2010 with Mr Moreno Ocampo indicating that the full-scale trials are likely to begin in the next “three to six months”. There have been divisions over whether the country should try the suspects in a local tribunal or refer them to The Hague.

Those pushing for the local tribunal have been arguing that the ICC would take long and would not deal with a large number of the suspects. But Mr Moreno Ocampo seemed to indicate that this notion is incorrect, indicating that the ICC has enough information on Kenya for the swiftest action possible.

However, the prosecutor said that Kenya should not view the ICC as the only solution and insisted the country must put a local judicial mechanism in place to try the suspects he will not deal with. In his letter to Judge Sang-Hyun, the prosecutor said he intends “ to submit a request under article 15, paragraph 3 of the Statute by December 1, 2009”.

ICC regulations require that the presidency assign the issue to a pre-trial chamber as soon as it receives to the notification. The section of the Rome Statute indicates that if the prosecutor concludes that there is a reasonable basis to proceed with an investigation, he seeks authorisation from the pre-trial chamber. At this point, victims of the alleged atrocities may make representations to the pre-trial chamber as it seeks to make a decision.

In his 30-minute interaction with journalists, Mr Moreno Ocampo indicated that he already had a team of investigators, lawyers, and international cooperation advisers ready to deal with the Kenyan case. Expressing a sense of urgency, the ICC prosecutor put on notice masterminds of the violence who thought that The Hague trials would be delayed.

The 2008 violence in Kenya broke out after the disputed re-election of President Kibaki to a second term. The violence led to the death of 1,133 people and the displacement of 650,000 others. The Waki Commission of Inquiry on the violence reported that while some of the violence was sparked by the poll dispute, in some other areas it had been planned.

Mr Moreno Ocampo said that if he were allowed to return to Kenya, his interaction with the victims would be very discreet in an apparent appeal to them to meet him when called to do so. He said the victims’ interviews by the prosecutor were part of the healing process. He also made it clear that he would go for those individuals who bore the greatest responsibility for atrocities against Kenyan civilians.

He added that he was not bound by the list prepared by the Waki Commission, which is said to include Cabinet ministers, MPs and prominent business persons. The ICC prosecutor indicated that the trials could be held in Kenya but gave a strong indication that they may also be based in Arusha where there are “well established systems and facilities.”

The Tanzanian city hosts the International Criminal Tribunal for Rwanda where suspects involved in the 1994 genocide have been prosecuted. Justice Minister Mutula Kilonzo, who played host to Mr Moreno Ocampo, said that he was satisfied with how the matter has developed. “I wish it could have occurred earlier. I wish it could come sooner. If you say it is pre-mature, what about those who died? When will it mature? We want closure,” said Mr Kilonzo.

Elsewhere, Eldoret Catholic Diocese Bishop Cornelius Kipng’eno Korir said that Mr Moreno Ocampo’s trip would have been even more successful if he had met the victims. “I was excited when I heard of his coming. It was really positive. But he ought to have visited the hot spots so that he would have a feel of the victims, especially this North Rift region,” said Bishop Korir, whose diocese hosted more than 32,000 IDPs at the height of post-election violence.

Additional reporting by Jonathan Komen

 

source.nation.ke