By Martin Mutua
Luis Moreno-Ocampo arrives next week having warned President Kibaki and Prime Minister Raila Odinga to hand over key suspects of post-election violence.
The International Criminal Court Chief Prosecutor will be seeking a commitment from the Grand Coalition Government principals that once he concludes his investigations and points out suspects bearing the greatest responsibility, he will get co-operation from the highest offices in the land.
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| Luis Moreno-Ocampo: International Criminal Court Chief Prosecutor |
The visit could put Kibaki and Raila in a fix given that at least six ministers from both sides of the coalition are believed to be among the ten prominent suspects in Mr Moreno-Ocampos file. At the back of their minds will be the secret the Argentinian let out when he said Kenya would be an example to the world on impunity.
The prosecutor will also be piling pressure for the trial of lesser offenders through a yet-to-be-created, bu inevitable, Special Local Tribunal.
His visit will be coming only weeks after Chief Mediator Kofi Annan visited Nairobi and warned the window of opportunity for reform before the next election cycle was fast closing.
Justice Minister Mutula Kilonzo, select political scientists, lawyers and European Union diplomats are agreed the key perpetrators of last years post-election violence must be handed over to Moreno-Ocampo since the Government has failed to establish a local tribunal.
“Those found to have committed international crimes cannot be tried in Kenya as they will have to face Ocampo at The Hague,” said Mutula who confirmed Moreno-Ocampos visit is set for Wednesday next week.
In a letter to Mutula dated October 9, requesting to meet the principals on October 13 or14, Moreno-Ocampo stated: “The purpose of the visit would be to explain my duty as prosecutor of the ICC with respect to the prosecution and the prevention of crimes committed in Kenya during the post-election violence of 2008.”
A copy of the letter has been shown to The Standard. Moreno-Ocampo went on: ” The activities of my office should be part of a comprehensive solution that requires the leadership of the Kenyan principals.
Local tribunal
“I appreciate the cooperation received so far from Kenyan authorities and I believe the proposed visit will help to establish a mutual understanding to take further action and implement an effective remedy for past crimes,” he added.
During his visit in Nairobi early this month, Dr Annan warned there was a confidence crisis in the leadership of the country.
Mutula said if Parliament allowed him to take over Imenti Central MP Gitotu Imanyaras proposed Bill and amend it to meet international standards, then the matter would be handled locally. “We will own the process and we will demonstrate to the world that we are able to handle our own affairs,” he added.
The minister says the Imanyara Bill “glosses over” the question of constitutional powers enjoyed by certain constitutional office holders.
AGs powers
He says the Bill has not dealt with the power by the Attorney General to withdraw cases and the powers of the Chief Justice to interfere with the processes.
He said for the Bill to meet international standards there was need to make ensure the AGs powers to terminate cases as well as those of the Chief Justice to interfere are shut out of the process.
But the European Union said they welcomed Moreno-Ocampos visit and expressed hope that the Kenyan government will cooperate with him.
“It is important to for the Kenya Government to do something about impunity that is why we are urging cooperation with the ICC,” added Ms Eaanika Jayawardena, the Charge dAffairs at the Swedish Embassy. Sweden currently holds rotational EU Presidency. Jayawardena said the EU was also equally concerned about the threat on human rights defenders.
“The visit by Mr Moreno-Ocampo includes fighting impunity and the ICC is very important in this war and co-operation with ICC is very important,” she added.
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| A typical scene during the 2007 post-election mayhem. Photo: File/Standard |
She said they had appealed to leaders to speed up the comprehensive constitutional reforms, electoral reforms and the police as well as judicial reforms as had been agreed upon with Annan.
Finalised his investigations
Political scientist Dr Adams Oloo said the message by Moreno-Ocampo was informed by the three-pronged approach of dealing with the post election violence which includes The Hague, Special Local Tribunal and the Truth, Justice and Reconciliation Commission.
“Ocampo will be seeking the co-operation of the two principals through an assurance once he has finalised his investigations and he seeks their help they would be willing to cooperate,” he added.
Oloo, a political scientist at the University of Nairobi, further says Moreno-Ocampo will be concerned with his mandate of trying the key perpetrators.
ICC concerns
The International Commission of Jurists Kenya Chapter said Moreno-Ocampo would be coming to solicit cooperation and blessings of the two principals to facilitate ICC.
ICJ Kenya Chapter Chairman Wilfred Nderitu said Moreno-Ocampos visit had everything to do with concerns whether ICC investigators could work on the ground and secure prosecutions as well.
“Ocampo will not be starting from a point of 100 per cent ignorance because what he must have seen in the Waki envelope may have prompted him to act,” he added.
Mr Nderitu said the Government came up with an agreement with Moreno-Ocampo when its ministers visited The Hague and resolved that if by the end of September nothing would have happened then they would invite him to take over.
Nderitu said the Moreno-Ocampo visit was also a delicate balancing act for the principals because while dealing with the question of impunity they also dont want to rock the boat of peace and stability.
“However, they have no choice but to cooperate with Ocampo fully or be prepared for the consequences,” added Nderitu.
Kenya National Commission on Human Rights Chairperson Florence Jaoko says the commission had always rooted for a local tribunal because ICC was only going to deal with a few people and if the local systems are still the same then both middle and lower level perpetrators will be left to go scot-free.
Ms Jaoko said Kenya was a signatory to the Rome statute and had already domesticated it adding that even if crimes against humanity had been committed it should be possible for the suspects to be tried locally.
Jaoko also challenged Kibaki and Raila to speak about these issues for Kenyans to know where they stand to avoid speculation.
Parliamentary Committee on Administration of Justice and Legal Affairs Chairman Abdikadir Mohamed said the best option would have been a Kenyan process. “There is nothing to celebrate with the coming of Ocampo because this means our institutions have failed,” he added.
source.standard.ke



