by Martin Mutua

The Hague beckons for post-election violence suspects. International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo will request the court’s judges to open investigations into the Kenya case next week.

Come Friday, the three pre-trial judges assigned the case will know the names of the suspects.

In a confidential letter to Kenyan authorities, a copy of which The Standard on Saturday obtained, the Office of Prosecutor says Ocampo intends to file an application to the Pre-Trial Chamber II by November 27.

This is four days earlier than the December date Ocampo had communicated after the November 5 meeting with President Kibaki and Prime Minister Raila Odinga, in which he decided to pursue the case on his own after the Government declined to refer it.

The development demonstrates the urgency with which the prosecutor is determined to conduct the Kenya case and, in his own words earlier, present two to three cases for trial, possibly by July next year.

According to the letter addressed to Justice Minister Mutula Kilonzo, the prosecutor intends to file the application by November 27 before the three-judge Bench chosen to determine whether the crimes committed in the post-election violence following the disputed 2007 presidential election warrant ICC attention.

Members of the parliamentary caucus on reform at a retreat in Naivasha to discuss the Harmonised Draft Constitution on Friday. Photo: Antony Gitonga/Standard

"The prosecutor intends to file this application by November 27, together with relevant supporting material collected during the preliminary analysis into the situation of the Republic of Kenya," stated the letter signed on his behalf by ICC Director of Jurisdiction, Complementarity and Co-operation Division Beatrice Le Fraper du Hellen.

The three judges assigned the Kenyan case are Justice Hans-Peter Kaul from Germany, Justice Ekaterina Trendafilova from Bulgaria and Italian Justice Cuno Tarfusser.

The judges are expected to allow Ocampo to investigate the key perpetrators upon proof the gravity of crimes committed is within jurisdiction of the court, and that there are no Kenyan mechanisms for punishing the culprits.

The names of the suspects will, at this point, be revealed, at least to the judges, as Ocampo presents his case against the suspects.

Under Rule 76 of the Rules of Procedure and Evidence, the suspects will know their accusers at this stage. The prosecutor will provide the defence with the names of witnesses whom the prosecutor intends to call and copies of their statements.

The victims will also be allowed to make representations to the Pre-Trial Chamber as stipulated in article 15 (3) of the Rome Statute, Ocampo said in his letter of November 19.

"Under the rules of procedure and evidence, the prosecutor is furthermore obliged to provide notice to victims or their legal representatives of my intention to request authorisation," he added

Ocampo says he intends to make the request for an authorisation of investigation on the Kenya case through a public declaration.

"A press communiquÈ will be sent shortly to Kenyan media and civil society explaining to victims that under the regulations of the Court, they have 30 days to make representations to the Pre-Trial Chamber regarding the request to the Chamber to open investigations," added Ocampo.

He says the 30-day notice is meant to allow victims who intend to make representations to the Pre-Trial Chamber, to state whether the investigation should be opened.

"Victims who want to participate in the proceedings at a later stage will still have the opportunity to do so," he added.

While in Kenya, Ocampo stated he had a strong case against a number of unnamed people for crimes committed during post-election violence in December 2007 and early last year.

"Everyone is worried about the next General Election in Kenya in 2012. That is why I understand the importance of speed," he was reported as saying.

Ocampo was also further reported to have said that he would go to various communities, see and listen to victims and collect evidence confidentially. "Then I will present my case. Then the names will be known. In the meantime my duty is to make criminal records ready: who gave what orders to kill. That’s it," he added.

Asked whether his investigation would not be a destabilising factor in the run-up to the next election, Ocampo retorted: "I’m aware of the need to have a peaceful election in Kenya and so I think that 2010 is the time to identify the evidence, identify suspects, the judges decide on them and [then we’ll] be ready to hold the trial."

Ocampo said he had decided to take up the matter unilaterally because the Kenyan Government had declined to refer the matter to the ICC.

President Kibaki and Prime Minister Raila have reportedly agreed to co-operate with any trials that the ICC prosecutor will initiate, but reiterated that the Government remains committed to a "local judicial mechanism". However, a Bill by Imenti Central MP Gitobu Imanyara currently before the National Assembly has received little support from the Government.

It has on two occasions been hit with a lack of quorum. The latest was Wednesday this week when debate was halted due to lack of quorum. The House was then adjourned until next Wednesday.

However, there are strong indications that it is unlikely to succeed due to little support from MPs. It requires the support of at least 145 members to sail through.

And Raila told the House this week during the Prime Minister’s question time that the Government was not in a position to refer the cases to the ICC. He said such a move would be misconstrued to mean Kenya is a failed state.