Will letter to ICC put Kibaki on the spot?

By Juma Kwayera

Unless President Kibaki follows up a statement he sent to the International Criminal Court by subjecting himself to cross-examination to ascertain its veracity, his bid to rescue Head of Civil Service Francis Muthaura and co-accused will not yield much, lawyers say. 

Head of Public Service Francis Muthaura at the ICC. Photo: File/Standard

In an unprecedented move that also saw senior civil servants send testimonies to the ICC at the start of round two of confirmation hearings, the State is leaving nothing to chance to prevent the case from going to full trial.
The statement read to the Pre-Trial Chamber II judges sought to clear Muthaura of greatest criminal responsibility on charges of mass rape, crimes against humanity, displacement of populations and arson.

The lawyers say the President’s accusation against ICC Chief Prosecutor Luis Moreno-Ocampo that he (Prosecutor) did not attempt to collect evidence from him despite meeting him on two occasions will serve to renew ICC interest in Kibaki and Prime Minister Raila Odinga’s possible criminal responsibility, irrespective of the ongoing judicial process at The Hague.

The President and the Prime Minister have featured prominently during the confirmation hearings. While Raila’s name was dragged into the hearings by the first set of suspects — Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and radio presenter Joshua arap Sang — Kibaki waded into the matter vide a statement seeking to exonerate Muthaura from the four charges he faces.

“The President has exposed himself to criminal law. For his statement to have supported the defence at the confirmation hearings, he will need to offer himself for cross-examination. The President is not exempted from cross-examination even if he is not a party. The violence was not a one-day event. He must prove to the court that he was with Muthaura throughout the period the violence took place,” says lawyer Okweh Ochianda.

In his statement, the President said he was with Muthaura on the day Ocampo alleges the latter chaired a meeting at State House to plan retaliatory attacks against Luos, Luhyias, Kalenjins and Kisiis in Naivasha and Nakuru. On the same day, the President says, he had a meeting with his supporters at State House.

On Tuesday, Muthaura’s key witness Thuita Mwangi had his back against the wall during cross-examination by the post-election violence common legal representative Morris Anyah.
The lawyer accused Muthaura of being a political appendage of PNU rather than playing a non-partisan role in the disputed 2007 presidential poll.

No bearing

Other than the President exposing himself to further investigation, says Omar Hassan of the Kenya National Commission on Human Rights, the statement will not have a bearing on the outcome of the hearings.
“The President’s defence of the suspects is nothing more than an expression of solidarity with Muthaura. It is similar to the recommendation of a referee during a job application. You do not expect such a recommendation to question the applicant’s character,” says Hassan.

KNCHR provided some of the evidence the prosecution is relying on to prosecute the case. The statement, which was accompanied by others from former Internal Security Minister (now Environment) John Michuki and NSIS Director Michael Gichangi, among others, exonerated the Head of Public Service from any wrongdoing.
After ICC named the six suspects, President Kibaki waged a shuttle diplomacy offensive to lock the ICC out of Kenya. At some point, Kenya even tried renouncing its ratification of the Rome Statute, the UN Security Council instrument that created The Hague-based ICC.

The bid failed after the Security Council declined to support the attempt to shield Muthaura, Kenyatta, Ruto, former Police Commissioner Hussein Ali and Tinderet MP Henry Kosgey.
From then on, the ‘shuttle diplomacy’ ran out of steam as the governing elite opted to underwrite the legal fees of the defence, besides shopping for the best lawyers versed with ICC processes to represent them.

Rome Statute

Under the Article 15 of the Rome Statute, the President and Prime Minister can still be investigated in the event there is information linking them to the post-election violence, which claimed 1,133 lives displaced more than half a million people.
Article 15 (2) says: “The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental, NGOs or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the court.

Even if ICC discredits the prosecutor’s evidence, the Article gives him authority to launch fresh investigation.
It says: “If, after the preliminary examination referred to in paragraphs 1 and 2, the prosecutor concludes the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.”

Ocampo has already stated his investigations did not find sufficient grounds to incriminate the President and the Prime Minister.