An effective local tribunal is better than The Hague

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By Ezra Chiloba

The notion that the International Criminal Court (ICC) in The Hague will expedite the prosecution of perpetrators of Kenya’s 2007 post-election violence is exaggerated and misguided.

The Hague has been popular partly because of misrepresentation by the media, manipulation by some politicians, and lack of information. If we are serious with ending impunity, there is a very strong case as to why establishing an effective local tribunal is the way to go.

This is why our MPs should turn out on Tuesday to pass the Constitution of Kenya (Amendment) Bill 2009, and subsequently the Bill establishing the Statute of the Special Tribunal for Kenya.

First, the ICC prosecutor will not pursue the foot soldiers, who executed the killings and violence. The prosecutor’s mandate is to prosecute persons bearing the greatest responsibility.

You can call them the ‘biggest criminal’ or the ‘big fish.’ If this is the case, what happens to hundreds of criminals out there?

Second, the ICC criminal procedure is very technical and can lead to delays and even the release of the ‘big fish.’

This almost happened in the case against the Congolese warlord Thomas Lubanga Dyilo. Lubanga is charged with enlisting, conscripting and using children under the age of 15 years to participate actively in hostilities in DRC. He was in custody somewhere in Belgium for two years before the prosecutor could build a case. But when the trial started Lubanga was almost released due some procedural error by the prosecution.

Third, due to budgetary constraints, the ICC prosecutor may not take more cases than what he is investigating.

According to the statement by the registrar of the ICC, it is projected that this year, the prosecutor will conduct only five investigations in three of four countries before the ICC.

Delay in prosecution

The four countries include Uganda, DRC, Central African Republic and Sudan (Darfur).

In the planning, it was assumed that the prosecutor would not begin investigations in any new country, at least this year. The earliest Kenya can expect to be considered is next year and beyond.

Fourth, even if the ICC intervenes, the threshold for cases is high. Individuals, States and the UN Security Council, usually refer cases to the ICC. Five years since the ICC became fully operational over 3,000 cases have been referred to it. Out of this number, only 12 arrest warrants have been issued. Six of 12 remain at large, two have since died and only four are in custody.

Fifth, the effectiveness of the ICC depends on the co-operation of States. As such the prosecutor has been criticised for targeting only rebels in the countries of investigations except in Sudan where he added Sudanese President Al Bashir.

So far only 108 countries have ratified the Rome Statute. It may pose challenges to the prosecutor where countries not party to the statute fail to co-operate in arresting suspects.

ICC prosecutor has also been criticised for focusing only on Africa. True, Africa has had the worst history of heinous crimes. However, critics argue that in the absence of arrests in other countries, there will be a growing perception of "ethnicisation" of the ICC. To avoid severe criticisms, the prosecutor is likely to turn attention to other continents.

If we have to see justice being done and done quickly, as a country we have to be realistic with the ICC process. The ICC may not address the urgency of our situation. Let it come as the last option when the local tribunal has failed.

How can we dismiss a tribunal we have not even established! That is not to say the proposed statute is perfect. Once the constitutional amendments are passed on Tuesday stakeholders can build consensus on the kind of Statute Kenya deserves.