PNU admissibility challenge hopeless

PNU/KKK determination to avoid Luis Moreno-Ocampo’s charges at the ICC in The Hague appears to be facing a flop. To begin with the coalition Government still does not see eye to eye on the deferral issue. Whereas the PNU/KKK group is talking of the deferral, ODM still prefers referral. The terms are both found in the Rome Statute and they don’t men the same thing.

Article 16 which deals with the deferral of investigation or prosecution says no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect. It also says that request may be renewed by the Council under the same conditions. After meeting informally the Security Council rejected the PNU/KKK request for the deferral of the Kenyan case at ICC.

The only hope for the KKK/PNU to save the six suspects from the charges is by the use of admissibility challenges. The issue of admissibility is to be found in Article 17of the Rome Statute which basically says though the ICC is expected to be complementary to national criminal jurisdictions, it is nevertheless a permanent institution that has the power to exercise its jurisdiction over persons for the most serious crimes of international concern while the jurisdiction and functioning of the Court shall be governed by the provisions of the Rome Statute.

It also says a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The fact of the matter is that PNU/KKK faction of the coalition Government has indeed been very unwilling to have the six suspects investigated let alone to have them prosecuted.

Among the suspects are Kenya’s most powerful people in the Government such as the Head of the Civil Service, Francis Muthaura, and the Deputy Prime Minister, Uhuru Kenyatta. These two people can be said to be mainly responsible for Kibaki’s total unwillingness to cooperate with Luis Moreno-Ocampo in seeing justice being done to hundreds of thousands of IDPs still living in torn tents while depending on donations from the Red Cross.

Though the Government is now trying to create a picture of establishing credible institutions that will conduct investigations, such investigations can never be conducted before the police force has been reformed. Reforming the police force in Kenya is almost an impossible task because it is being protected by the most powerful individuals within the PNU/KKK factions of the Government.

According to the Rome Statute a case is also inadmissible where it has been investigated by the State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. In the Kenyan situation no investigation what so ever has been done on the six suspects so the issue of not prosecuting them as a result of such an investigation does not arise. It is common knowledge that the PNU/KKK faction of the coalition Government is adamantly, and may be even arrogantly, refusing to accept the fact that the Ocampo Six are suspects at all.

As far as the local prosecution of the six is concerned the PNU/KKK faction of the Government is not only unwilling to conduct the investigations and prosecute the suspects, it is in fact absolutely incapable of doing so as neither the police force has been reformed nor has the local independent tribunal of international standards been established. The Kenyan case would also have been inadmissible if the six had already been tried for conduct which is in the subject of the complaint.

In that case the trial by the ICC would not have been permitted because the Rome Statute clearly says no person who has been tried by another court for crimes against humanity shall be tried by the ICC with respect to the same crimes unless the proceedings in the other court were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

This clearly means even if the PNU/KKK faction of the coalition Government succeeds in getting a deferral, the suspects would still be subjected to proper prosecution and trial that is of internationally accepted standards. ICC also determines a case to be inadmissible if the case is not of sufficient gravity to justify further action by the Court. This is where PNU/KKK’s hope lies. It will mainly depend on the dissenting opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II. In his ruling the Judge believed the case against the Kenyan accused was not strong enough. What is to be noted about that opinion, however, is the fact that he did not think the six were innocent. All he differed about was the strength of the case against the six.

According to the Rome Statute in order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the proceedings, for example, were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court. Again this will make stage managed trials almost impossible to take place in Kenya.

The court also looks at the issue of whether there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice. It also looks at whether the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

The Statute says that in order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. The present judicial system in Kenya is not, when all is said and done, very different from that. Which means PNU/KKK admissibility challenges are likely to be very weak indeed.