Fresh plan to block Ocampo

By BIKETI KIKECHI

Kenya could become a pariah state after one-half of Government effectively set the stage for ending co-operation with the International Criminal Court over the prosecution of 2007-08 post-election violence suspects.

President Kibaki and his Party of National Unity (PNU) now want suspects identified locally and by the International Criminal Court to be tried by a local tribunal. The move has left Prime Minister Raila Odinga and ODM in a quandary just a day after the PM and Kibaki appeared united in condemning US Ambassador Michael Ranneberger.

The PNU plan is banking on support from rebel ODM legislators from the Rift Valley opposed to Raila, but allied to Eldoret North MP William Ruto, to drum up support for the plan in and outside Parliament.

Raila and MPs allied to him are opposed to the plan, noting that the same MPs voted against a local tribunal to try the suspects in February, 2009, but have lately been outspoken in condemning International Criminal Court prosecutor Luis Moreno-Ocampo, claiming his investigation is one-sided and targets certain communities.

They say the ICC process should be allowed to run its course since Kenyans’ trust in the local judicial system is severely lacking.

But it is the shock decision by Kibaki, who appeared to go back on his promise to mediator Kofi Annan that the Government would support the ICC probe, which is bound to keep analysts busy for the rest of this week.

Analysts say Kibaki’s decision may be centred on succession politics within PNU and Central Kenya, and growing fears that one of the region’s leaders, a scion of a political family eyeing the presidency, may or may not become a guest at The Hague’s prison in the Scheveningen district in 2012.

With Kibaki not entitled to another presidential term, PNU, the party that brought him to power, faces a bruising battle for leadership that could ultimately see its disintegration.

Sabotaging the process

With this in mind, several Central Kenya politicians and leading business people who have been rooting for one of their own to take over the leadership of PNU are ready to "sup with the devil" as the saying goes, by sabotaging the ICC process.

Kibaki chaired a five-hour meeting at State House yesterday where ODM MPs led by Raila rejected a statement seeking to create a local judicial process to try the suspects. The ODM group left the meeting at State House and headed to the PM’s office for another meeting in response to what had transpired.

But notwithstanding what had transpired the Presidential Press Service released a statement saying the Government had resolved to establish a local judicial mechanism to try post elections suspects irrespective of what happens at the ICC on Wednesday.

That is the day, when Moreno-Ocampo is expected to announce the names of six suspects contained in his now famous envelope.

But after the PM’s meeting, a close associate gave a conflicting statement from the one sent by the PPS from State House. "The Cabinet meeting agreed the ICC proceeds with its case against the six while the Government seeks the United Nation’s help to set up a local tribunal," said the official.

He then pointed out that ODM ministers rejected a statement allegedly crafted by Deputy Prime Minister Uhuru Kenyatta and Cabinet Secretary Francis Muthaura the credibility of the ICC process and Moreno-Ocampo’s independence.

Sources at the Cabinet meeting had earlier indicated that ministers found a prepared statement that they were asked to support. "They expected us to rubber stamp the document of stopping the ICC process in favour of a local judicial process on the basis that we now have a new Constitution that will effectively deal expend the matter," said a minister who attended.

Among the proposals raised in the statement were that the Government should start the process of replacing the Attorney General and the Director of Public Prosecutions to create the confidence needed in the

Most ODM ministers, however, rejected the proposal and demanded that the ICC be left to do its work. Some PNU ministers reportedly argued that Attorney General Amos Wako should be sent to The Hague to stop the process in favour of a local one.

Should the Government refuse to co-operate with ICC, suspects could be blacklisted by the court for arrest to be arraigned in court at a later date.

At stake will be various agreements signed by the Government committing itself to the ICC process, including the recent one signed between the Cabinet sub-committee on ICC matters and ICC Registrar Sylvana Arbia in Nairobi.

Arrest of suspects

Two weeks ago, both Kibaki and Raila assured former Dr Annan and Moreno-Ocampo the Government would fully co-operate with the process of indicting the suspects.

But given the latest development, the big question is whether the Government will be willing to arrest the suspects should they not co-operate with the ICC.

During Monday’s meeting it was revealed that Transport Minister Amos Kimunya was among the most vocal people who opposed the ICC process. One pro-Raila ODM minister said: "First we made a commitment to the ICC and second, how will we look in the eyes of the world because nothing has changed to warrant what is being proposed now."

The statement from State House released after the meeting said the Government has variously said the case should be resolved through an independent and credible local judicial process. It said the Government published two Bills, which were unfortunately rejected by parliament, and that is the reason why ICC is investigating post-election violence.

Judicial Mechanism

It said: "It is our considered opinion that Kenya’s national interests of peace and security, political stability, national reconciliation, and comprehensive justice for all victims of post-election violence cannot be achieved without a local judicial mechanism."

Consequently, they agreed that irrespective of what transpires at the ICC tomorrow, and in view of the fact that ICC is only a court of last resort, the Government will establish a local judicial mechanism in accordance with the Rome Statute within the framework of the new Constitution.

But Justice and Constitutional Affairs Minister Mutula Kilonzo defended the Cabinet decision saying it was within the Kenyan law and the Rome Statute.

Mutula, who missed Monday’s abrupt meeting at State House as he was in his Mbooni constituency, said, "That is within the law. We might not even need a special tribunal but as soon as we have a new CJ and an AG, we can move ahead and have a three judge bench to handle post-election cases".

He added: "Even if Ocampo goes ahead to prosecute anybody he finds guilty, Kenya will have to deal with many other post-election violence cases bordering on human abuses."