ICC: Hague ruling opens new chapter

Closest confidants

The ruling struck at the heart of President Kibaki’s administration, hooking on its end his Deputy Prime Minister and Finance Minister, who is also his perceived, preferred successor, and the man who reports to him directly in his capacity as Head of Civil Service and Secretary to the Cabinet.

Technically, in government operations, Muthaura is the President’s ‘enforcer’ and meets and talks with him daily.

It also opened a new page in Kenya’s history where the story of a retiring President leaving behind two of his closest confidants facing ICC trials, the first involving Kenyans, will be written and archived. Indeed, the President himself had given a personal statement to the court in support of Muthaura.

The President ordered the Attorney General to form a team to advise his Government on how respond to the ICC ruling. He also renewed orders for the completion of resettlement of Internally Displaced Persons (IDPs) who have been in the camps since the skirmishes spurred by the controversial declaration by the defunct Electoral Commission of Kenya that he won the ill-fated 2007 presidential election.

Appeal against dismissal

But the Pre-Trial Chamber II said it found no evidence to commit to trial Mr Henry Kosgey and Ali, but still left a window open for outgoing Prosecutor Luis Moreno-Ocampo, who led the investigations, to appeal against the dismissal of the charges he drew against them.

It also left Kenyans wondering if the ruling was not decided on the basis of outspokenness and open criticism of the ICC process, because Kosgey and Ali hardly spoke openly about what they thought of ICC, and limited their defence and misgivings about Moreno-Ocampo’s investigations to the courtroom.

Like in the ruling last year on jurisdiction of ICC cases, German-born judge Hans-Peter Kaul dissented with the ruling, but it sailed through on the basis of majority vote because presiding judge Ekaterina Trendafilova from Bulgaria and Cuno Tarfusser of Italy were of the contrary opinion.

"He maintains that ICC is not competent because the crimes committed on the territory of the

Republic of Kenya during the post-election violence of 2007-2008 in his view were serious common crimes under Kenyan criminal law, but not crimes against humanity as codified in Article 7 of the Rome Statute,’’ explained Trendafilova during the presentation of oral summary of the ruling at The Hague.

Together, the six "Defence teams and the Prosecutor in both cases disclosed approximately 30,000 pages of evidence, for the purpose of the Chambers’ determination on the charges presented,’’ she added.