ICC should assist Gachoka get a visa to The Hague

By Dan Mwangi

Tony Gachoka has volunteered to provide information to the International Criminal Court over the 2008 post-election violence. Obviously, any credible supranational court or country, and especially the Dutch Government, which houses the ICC and is also a member of the Assembly of States Parties (ASP) to the ICC would gladly support his cause.

This is because the court has lacked unequivocal support by many political players in Africa and in many situations like in the Kenyan case, Democratic Republic of Congo and Central African Republic, potential witnesses have demanded to be paid before cooperating with the court. In this case, Mr Gachoka was not demanding any payment.

Evidently the act of denying Gachoka a visa is an obstruction of justice and will only defeat the prosecution of the Kenyan cases. If indeed he has credible information, the likelihood of key perpetrators of post-election violence not facing the law is high and equally, many victims of the violence will never get justice.

Under the Rome Statute, Article 86 1 (C) demands all members of the Assembly of the State parties fully cooperate with the ICC in the investigation and prosecution process and therefore by denying him a visa without any justification, weak or strong, Dutch Government is subverting the cause of justice.

This denial raises more suspicion as to why the same Government gave visas to more than 100 Kenyans, who attended the Kenyan cases Pre-Trial Confirmation hearings to only offer moral support to the suspects, but blatantly denies a man who voluntarily wants to go to The Hague to provide what he believes is information that would support the ICC judicial process.

To this end, the Kenyan Government should invoke Article 87 (7) of the Rome statute and petition against the Dutch Government to the ASP and the UN Security Council for obstructing justice.

In addition, there are strong indications that the Kenya National Commission on Human Rights did not make public its first draft on post-election violence but rather made public the second draft, which had apparently edited some names of powerful individuals who it had suggested that they be further probed and possibly prosecuted for the violence.

Up to now, KNCHR has never come clean on this issue and despite the departure of top officials; they must be accountable on this matter.

Nevertheless, the ICC cannot go unchallenged on Gachoka’s denial of the visa. Previously, the court has been accused of politically motivated prosecutions and if the new ICC prosecutor refuses to assist Gachoka to get a visa, she will be obstructing African justice. Further, she will only reinforce the perception that the court is a political one. This is because under Article 87 1 (b) of the ICC statute, she has the powers to demand that the Dutch Government grant Gachoka a visa.

Alternatively, sub-section (b) is categorical that she can transmit the demand to Dutch government through the International Criminal Police Organisation like the Interpol or appropriate regional organisation like the African Union.

Therefore, the ICC cannot bury it head and refuse to intervene. If it does, then the court will be conspiring with the Dutch government to defeat justice and this must not be allowed.