Cabinet plan to mislead ICC failed

The Cabinet has failed yet again. It has not agreed on how to try post election violence planners and financiers. So it has embarked on a disinformation exercise meant to mislead both the International Criminal Court and the people of Kenya. This plan, however, is likely to fail as miserably as the Cabinet is despondently divided. The idea of addressing a Press Conference, attended by every member of the Cabinet at State House, to announce the options available to deal with crimes committed during post election violence, was a face saving damage controlling exercise, which is also bound to fail desolately. The cat is now out of the bag. Kenyans are not able to agree on how to establish a credible, internationally recognized tribunal, which will try post election criminals, who caused the death of over 1,000 citizens and displaced more than 300,000 innocent men, women and children.

The outcome of all this laughable political drama is that ICC’s Moreno-Ocampo will now have no option but to move in with full speed. It will not be surprising at all if he immediately makes the names in the Waki envelop public, and proceeds to indict the named people, no matter how important they are. After all the Kibaki-Raila Cabinet has now publicly disowned the Waki Report and opted to pretend to do something the respected judge never recommended – establishing special High Court Division to try the culprit.

That division will command neither local nor international respect. It will be composed of the same corrupt judges presently manning the Judiciary. The question Moreno-Ocampo and all Kenyans who would like to see justice done following the post election bloodbath is : If Chief Justice Johnson Evans Gicheru has been unable to control , introduce discipline , end corruption and expedite trials in the courts under him , how can he control the Special High Court Division, Mwai Kibaki was talking about?

The body language of Ministers standing with the President at the Press conference spoke volumes. They obviously had agreed to disagree. The three camps were still poles apart. Mutula Kilonzo’s sensible option to establish a credible tribunal that would have denied the President any form of immunity faced serious opposition from John Michuki, Kiraitu Murungi and Moses Wetangula. Though ODM, and therefore the Prime Minister, supported Mutula Kilonzo, who obviously was also supported by the Vice President, Kalonzo Musyoka, President’s loyalists won the day. Or did they?

They argued that Kenya should not be legally controlled by foreigners. The third group that was made to believe they were true victors of the Cabinet verbal contest was made up of the people whose names Moreno-Ocampo is after: Uhuru Kenyatta, William Ruto and Najib Balala. This group, strangely backed by William ole Ntimama wanted to hear nothing about The Hague and nothing about a credible local tribunal. They claimed the country needed to heal the post election violence wounds. With the unspoken threat of preparedness to embark on similar violence, if they were pushed against the wall, they forced everyone to reluctantly agree with their proposal – a combination of TJRC and a revamped Special High Court Division to try the suspect. Because some of the suspects sat on the same table as those who were genuinely interested in true justice, everyone had to pretend to agree. In other words they all agreed to disagree.

Mwai Kibaki talked of four other options examined by the Cabinet. First, there was the Mutula Kilonzo’s Special Tribunal which was obviously rejected by the suspects backed by the President’s sycophants. For obvious reasons the Cabinet rejected this option. Secondly there was the referral to the International Criminal Court (ICC) option under article 14 of the Rome Statute which is about referral of a situation by a State Party. Section One of that Article says that a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purposes of determining whether one or more specific persons should be charged with the commission of such crimes.

Section Two of the Article says as far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation. It is not difficult to imagine how Uhuru Kenyatta and William Ruto vehemently rejected this option backed by Najib Balala. They must have accused Mutula Kilonzo, Raila Odinga, James Orengo and Vice President, who suggested this alternative option, of trying to throw them into a lion’s den. What they forgot is that all the relevant documents have already been handed to the ICC Prosecutor Moreno-Ocampo by Justice Waki. The Cabinet decision will not stop the ball rolling into a formidable force that will sweep Ruto, Kenyatta and Balala right into The Hague.

The third option Kibaki talked about was withdrawal from the Rome Statute under Article 127 which says under Subsection One that a State Party may, by written notification addressed to the Secretary General of the United Nations, withdraw from the Statute. According to the Article the withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. Subsection Two of the same Article clearly says that a State shall not be discharged, by reason of withdrawal, from obligations arising from this Statute while it was a party of the Statute, including any financial obligations which may have accrued.

It further states that the said State’s withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceeding in relation to which the withdrawing State has a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. This means there is no way the culprits can escape Moreno-Ocampo’s net. Kibaki was also suggesting the repeal of the International Crimes Act of 2008, which cannot be done without the approval of Parliament. And Parliament seems to be determined to send the suspects to The Hague.

Kibaki’s fourth option was to try the suspect at the High Court under Section 8 of the International Crimes Act which says a person who is alleged to have committed an offence under of genocide, a war crime or crime against humanity, may be tried and punished in Kenya.The suspects in the Cabinet made sure this option was rejected because it still follows the ICC procedures. Looked at superficially, the option of establishing Special High Court Division may appear as a victory for Ruto, Kenyatta and Balala; but examining Kibaki-Raila Press Statement in details reveals that under Agwambo the Cabinet resolved it will not stand for impunity in the pursuit of justice, though it was also resolved that that the country should pursue national healing and reconciliation. The real and final winners were Raila and Kibaki who made the Cabinet publicly say that it reaffirmed its commitment to the rule of law, and in particular in its commitment to the International Criminal Court and will cooperate and fulfill its obligations to the Court. No wonder Uhuru and Ruto looked particularly gloomy at the Press Conference. The two know Moreno-Ocampo is on the way.

According to Kibaki and Raila the Cabinet will undertake accelerated far-reaching reforms in the Judiciary, Police and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post election violence locally. This is the part that is deliberately confusing. It is obviously meant to calm Ruto and Kenyatta. Indirectly it is still opening the door for Moreno-Ocampo because everyone knows these crimes can neither be investigated nor prosecuted locally. This is the part of the Press Conference that is meant to mislead the ICC and keep them away for some time as tempers in Kenya cool down.

Police Commissioner Hussein Ali must also be shaking in his boots for Kibaki and Raila also said that the Cabinet will deal with other forms of impunity including extra-judicial killings , corruption and unlawful acquisition of public land and other assets. Obviously Raila and Kibaki know this suggestion will take a long time to implement and that is why they also proposed to amend the Truth Justice and Reconciliation Act to make TJRC more responsive and effective. If the amendment of this Act is meant to keep the ICC away, however, it will be rejected by Parliament with the contempt it deserves. The Cabinet’s confidence that with proper healing and reconciliation, Kenya will not face the events of last year’s post election violence will only come true if the perpetrators of the violence face international justice. This justice can only come through Moreno-Ocampo.

Posted by I am a at 4:21 AM