Govt accused of plot to shield suspects

By Juma Kwayera

Kenya and the International Criminal Court (ICC) are locked in a battle over the prosecution of the post-election violence suspects. Already, Nairobi is said to have mooted a double-pronged strategy to frustrate the process.

The latest development introduces a new twist to the ICC Chief Prosecutor Luis Moreno-Ocampo pledge to use Kenya as an example to the rest of world on how to deal with impunity, corruption and crimes against humanity.

Ocampo’s impending investigations of electoral fraud has been billed as a turning point in the push for criminal justice. It has also exacerbated polarisation in the governing coalition with key figures said to be desperately planning to undermine the politically explosive process.

News of the Government’s intention to scuttle the judicial process was broken by the Vice Chairman of the Kenya National Commission on Human Rights (KNCHR) Hassan Omar.

Mr Omar said he was aware Attorney-General Amos Wako’s office had stepped up efforts to stall the process on account the crimes would be dealt with locally through the Truth, Justice and Reconciliation Commission chaired by Bethwel Kiplagat and local courts.

"But it is too late now. Two years have passed and we still have two more years before the next election. Ocampo has repeatedly pointed that if ICC does not seize this moment, it will be difficult for victims of the 2007 and 2008 election violence to find justice," Omar says.

The Executive Director of International Centre for Policy and Conflict (ICPC) Wainaina Ndung’u and Imenti Central MP Gitobu Imanyara acknowledged being aware of attempts by the State to retain an international law firm to file objections to Ocampo application to launch fresh investigations into crimes against humanity.

They said activity heightened when the period an ICC team that had been in the country for the past one month collecting information from victims of post-election violence, lapsed on December 23.

Kenyan Lawyers

Ndung’u, a lawyer, says besides the AG’s office, a team of Kenyan lawyers had been hired to shield the regular and Administration Police from Ocampo investigations.

"There is also another team in London that has been retained by the State to map out possible defence and objections," he says. Another team is said to be holed up in Vietnam.

He says the objections by the various groups in Kenya, including politicians suspected to have financed the mayhem, will zero in on rules of procedure that seek to play up perceived ICC interference in a sovereign state.

Initial hints of the hardening of positions between Government and ICC were dropped last November, a day before Ocampo arrived in Nairobi, by Foreign Affairs Permanent Secretary Thuita Mwangi. In an article published in a local daily, the PS poured scorn on Ocampo summing his push as intrusion in a Kenyan affair.

Homegrown Solutions

Mwangi wrote, "At a time when Africa is striving for homegrown solutions for African problems; at a time when the ICC justice is being unfairly criticised as an imposition if not a plot by the West; at a time when ICC justice is perceived to be far removed from victims of crimes in whose name prosecutions are brought; at a time when her leaders are crying foul when African leaders are dragged to far away Europe for prosecution, Kenya cannot afford to miss the opportunity to demonstrate Africa can deliver independent fair and impartial justice."

Asked to react to allegations the State was plotting to scuttle fresh Ocampo investigations Wako, steered clear of the subject.

"I can comment on that later. Right now, I’m dealing with bereavement," the A-G, who had lost an uncle, responded.

On his last trip in November, Ocampo scared the political elite when he declared he would pursue perpetrators of electoral violence irrespective of their status in Government.

At a press conference, Ocampo, buoyed by the trust he has cultivated in Kenya, vowed: "No list of suspects is binding on me. I have the duty to conduct my own impartial investigation; I will make my own determination on who should be prosecuted. My policy is to prosecute those most responsible for the gravest crimes, those who planned and organised the crimes."

Statement triggers panic

The loaded statement triggered panic and there have been defining swings in political affiliation as politicians and businessmen widely believed to be on Ocampo’s crime radar race against time to strike common ground.

The issues of concern in the impending prosecution include threats to human rights defenders and victims and witnesses, politicisation and ethnicisation of criminal accountability and failure to set up an effective tribunal and its implication on the culture of impunity in Kenya.

The chief prosecutor said he would narrow his prosecution to just "two or three, against those persons considered the most responsible."

The initial list handed to Ocampo contained 10 names, among them six serving or former Cabinet ministers based on Justice Philip Waki investigations into post-election violence.

While the State broods on how to deal with ICC, Omar says there will be no respite until poll violence crimes are prosecuted.

"It is expected the pre-trial chambers will give a favourable decision that will support the prosecutor’s intervention in Kenyan situation," says Omar, whose organisation feeds the international court with critical information on local Judiciary.

Omar has petitioned ICC to grant victims of the post-election violence to be heard, but Justice and Constitutional Affairs Minister Mutula Kilonzo, objects to time extension, saying it would delay justice for the victims.

The date of his return will depend on the outcome of a request by Kenyan human groups that have petitioned the ICC for an extension of time for victims of alleged crimes against humanity to file their views. The 30-day period initially granted by ICC expired on December 23. Ocampo said the first three weeks of this month will be used to define and concretise the charges the suspects will face. The suspects are expected to be known in March.

Made Presentations

The first three months are critical for victims of the violence as commencement of fresh investigations are likely to coincide with a referendum on the Harmonised Draft Constitution. Some of the victims have already made presentations to the ICC officials.

If the new constitution is approved by Parliament, the public will vote on it between March and June.

The person in the eye of the imminent storm is Wako, who faces renewed accusations of procrastinating on sealing the loopholes in the witness protection legislation to hasten the process.

"The State, through Vietnamese lawyers, has already filed objection to Ocampo application seeking to institute fresh investigation into crimes against humanity. Wako is also preparing to file objections, arguing that the matter is already being handled by local courts," says Imanyara.

Special Tribunal

Imanyara’s push for a special tribunal stalled because of lack of quorum in Parliament every time his Bill came up for debate.

Signs of the Government’s lack of commitment to the judicial process began to manifest last July when it failed to marshal enough support to pass a Bill – largely seen as fraught with loopholes – that would have created a special tribunal to prosecute crimes against humanity.

Even as the window of opportunity granted by ICC closed on September 30, the State still dragged its feet as it repulsed calls to refer the matter to ICC.

Even as Kenyans root for suspects of post-election violence to be tried by ICC, the State appears determined to frustrate any efforts that would lead to the culprits being brought to justice.

On November 26, 2009, the ICC Prosecutor filed a formal request with the pre-trial chamber II.