QUESTION: From your knowledge of international law, what does it involve to indict and convict suspects of international crimes for both State and non-State actors?

ANSWER: Evidence, like in any other criminal case. The offences are those defined in the Rome Statute and include genocide and gross violence of human rights.

Paul Muite

QUESTION: In your opinion, can indictments be influenced by international double standards and politics?

ANSWER: No. African States are the ones shouting double standards but in fact for the ICC to assume jurisdiction, it must be demonstrated that the Government and its institutions are unwilling or unable to prosecute. It is the third world countries that are caught by this thresh-hold.

QUESTION: In your reading of Waki Report, are President Kibaki and Prime Minister Raila Odinga liable for indictment under the Rome Statute?

ANSWER: More so President Kibaki than Prime Minister Raila Odinga in that the latter was not Prime Minister when violence took place. Article 28(b) of the Rome Statute states and I quote: "With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

QUESTION: Are there weaknesses in Kenya’s International Crimes Act and the judicial/legal regime that can hinder successful trials locally for the category of crimes envisaged by the Rome Statute?

ANSWER: Yes. Provisions of Article 28 of the Rome Statute were omitted when Parliament enacted the International Crimes Act, which was intended to domesticate the Rome Statute.

QUESTION: Can Kenya’s International Crimes Act alone enable trials for post-election offences given it was enacted a year after the crimes were committed?

ANSWER: If the charges are to be only under the International Crimes Act, Section 77(4) of the Constitution will need to be amended to exempt the charges from its provisions.

QUESTION: How did trials in Nuremberg and Manila after World War II navigate this kind of dilemma?

ANSWER: Although the Nuremberg and Manila trials were important landmarks, they were based more on "victors" justice than sound legal principles. The Rome Statute puts this International Jurisprudence on sound legal basis.

QUESTION: Is it practical for Kenya to host a tribunal in Kenya when the "complicit" regime is still in place?

ANSWER: The simple answer is No. Legislation, which meets international standards threshold cannot go through Parliament even before one begins to talk about Kenya hosting a tribunal. Also, a TJRC process pre-supposes a regime change so that you have in power a reformist Government with the mandate and political will to confront past injustices. We do not have such a Government in power today as beneficiaries and funders of violence are in Government. There can be no justice when suspects are the ones in leadership. Hague is the only practical option.

QUESTION: Do you think the ICC will deliver instant justice [in the short term] and do proposed Truth, Justice and Reconciliation Commission can substitute ICC?

ANSWER: Instant justice by ICC is not in my opinion the issue. Opening of investigations against named individuals will be a powerful message to the Kenyan people that the culture of impunity, which has afflicted Kenya since 1963, is put to an end. Indictments and trials can, thereafter, take their time.