ODM’s referral best option

There is no hope in hell for the Ocampo Six to escape the ruling of the judges of the ICC’s pre trial chamber II. Even with Judge Hans-Peter Kaul claiming the six’s alleged offences do not meet the ICC requirement for crime against humanity, the chances are that in the final analysis they will have to answer some charges before either an ICC court or a locally established one.

In other words there are remote chances of the six being acquitted before some form of trial takes place. Since the deferral attempts have been thrown out of the window at the Security Council’s informal meeting, the only way for the accused Kenyans to be given a fair trial is through the guidance of both the Rome Statute and the International Crimes Act of 2008. There is no way Judge Hans-Peter Kaul’s dissenting view can get the Kenyans off the hook.

Making his position known before concluding that no crimes against humanity were committed in Kenya, Judge Kaul confessed that he had taken that position with a heavy heart. He said he was profoundly aware of the crimes and atrocities described in the application for summonses to appear for the three suspects William Ruto, Henry Kosgey and Joshua Sang , pursuant to article 58(7) of the Statute through which Moreno–Ocampo requested that the Pre-Trial Chamber issues summonses for the six suspects.

Though Kaul opposed the move, the summonses were eventually issued and that is why the Kenyans are preparing to go to The Hague. While clarifying his position, Kaul said he understood and sympathized with the hopes and expectations of the victims of the crimes committed in different locations, including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas and Yamumbi), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts. He said he was aware of the victims' expectation that those responsible for these crimes should be brought to justice.

Kaul said: “I am also painfully aware that there are currently many citizens in the Republic of Kenya who hope for and support the intervention of the Court in this country because they do not have confidence in their own criminal justice system.”He said in these circumstances, he would like to reiterate his request to all those in the Republic of Kenya who yearn for justice and support the intervention of the ICC with regard to the crimes alleged in Moreno-Ocampo's application to understand and accept that there were, in law and in the existing systems of criminal justice in this world, essentially two different categories of crimes which were crucial in the present case.

According to him these were, on the one side, international crimes of concern to the
international community as a whole, in particular genocide, crimes against humanity, and war crimes and on the other side there were, common crimes, albeit of a serious nature, prosecuted by national criminal justice systems, such as that of the Republic of Kenya. The judge believed a demarcation line must be drawn between international crimes and human rights infractions; between international crimes and ordinary crimes; between those crimes subject to international jurisdiction and those punishable under domestic penal legislation.

Consequently Kaul had no doubt that the crimes alleged by Moreno-Ocampo against William Ruto, Henry Kosgey and Joshua Sang fell within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law. That is not the same thing as acquitting Ruto, Kosgey and Sang. As a matter of fact the judge says he is satisfied that William Ruto made available guns, grenades and gas cylinders to selected perpetrators.

He says the evidence tends to show that William Ruto promised perpetrators monetary reward in exchange for the destruction of Kikuyu buildings and every Kikuyu person killed. The judge also says he is satisfied that William Ruto was part of the coordinating efforts prior to the outbreak of the violence in Uasin Gishu and Nandi Districts between 30 December 2007 to the end of January 2008. According to him the evidence also tends to demonstrate that Henry Kosgey promised the perpetrators immunity for the crimes. He noted that the Moreno-Ocampo made no allegation of Joshua Sang's involvement in the Military Branch.

But the dissenting Judge believes that Kass FM was used as a communication channel by the Kalenjin audience to express inflammatory remarks and discriminatory views against non-Kalenjin communities. He said information was also available that messages were broadcasted on Kass FM for the erection of roadblocks. These being the views of dissenting judge at the pre-trial Chamber II, he cannot be of much use to the Ocampo Six except for the fact that he believes the whole allegations against the suspects are not serious enough to fall under the jurisdiction of the ICC.

So far the Government of Kenya has never claimed that the Ocampo Six were really innocent people. What the Kibaki faction of the Government wants is to be given an opportunity to try the suspects locally. Since the deferral attempts have failed then what remains on the table is ODM’s suggestion of a referral. According to the Rome Statutes issues of referrals are to be found in Article 14 which 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 purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

It also 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.And as far as Section Four of the International Crimes Act of 2008 is concerned the provisions of the Rome Statute shall have the force of law in Kenya in relation to the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests; the conduct of an investigation by the Prosecutor or the ICC; the bringing and determination of proceedings before the ICC; the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters. According to the Kenyan law the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests shall be guided by the Rome Statute.

This being the case it seems Kenya can do very little to disentangle itself from the ICC whether the trials take place in The Hague or in this country. Rather than politicizing the expected trials and connecting them to the next Presidential elections , Kenyan politicians would prove to all the voters in this country, and indeed to the international community , that they mean business in bringing about true justice for all if they simply obeyed the law. Any attempt to take illegal shortcuts and protect the suspected Ocampo Six will only be seen by the majority of Kenyans, backed by the international community, as the extension of crimes committed against innocent Kenyans after the 2007 elections.