Wako champions Africa case at ICC conference

By Patrick Mathangani in Kampala

Kenya’s Attorney General Amos Wako prosecuted Africa’s case for introduction of the controversial ‘Crimes of Aggression’, which seeks to address such ‘violations’ as one State invading another as USA did Iraq.

He led the continent’s fight for adoption of the new category of crimes on International Criminal Court’s charge list along with the rider UN Security Council, which is dominated by non-ICC signatories such as the US, China and Russia, should not be let to determine if they were committed. Instead, Wako who is the legal advisor of a government, some of whose members are being investigated by ICC, argued the determination of whether crimes of aggression occurred should be left to The Hague.

The group 30 African States sees giving the mandate to the council as handing politicians responsibility reserved for lawyers and Judges — that of deciding whether a crime has been committed.

On the second day of the conference where Wako’s presentation full of praise for Kenya’s handling of post-election violence cases was dismissed as "too much talk, little action", ICC Chief Prosecutor Louis Moreno Ocampo maintained he was closing in on six prime suspects of Kenya’s violence.

Saying this would teach perpetrators a lesson before the 2012 elections, Ocampo added he was on schedule to commencing the cases before December.

What surprised participants at the talks in Kampala was that Wako’s presentation was different from the draft he had signed and circulated to civil society groups in advance.

It bore a ring of the differences the Grand Coalition team took to Kampala, in which the Orange team claimed they were kept in the dark and were out to ensure the President’s side did not change position or ask for deferral of Kenya’s case.

It was the day the ICC President revealed that constraints of prison facilities at The Hague had been resolved following the signing of a new co-operation treaty with three Denmark, Finland and Belgium.

Ocampo, who addressed a press conference a day after saying a legal revolution was sweeping through Africa where co-operation with ICC was spreading, stressed the urgency of the court’s work. He vowed prosecutions must come before Kenyans go to the polls in 2012 so as to disrupt the cycle of violence reserved for election years.

Three suspects

"It has to be done before the elections," Ocampo told The Standard on the sidelines of the conference. "We have to cut the cycle of impunity."

Ocampo said the two cases he planned to prosecute by the end of the year could see two to three suspects in each case hauled to court to answer charges of organising the post-election violence in which 1,300 people died.

He revealed the court would offer protection for 60 witnesses whose evidence it plans to rely on to pin down the suspects. But he said the Kenya Government must also shield 350,000 victims of the violence, some of who could also be witnesses at cases to be heard before lower courts.

He said he was counting on Kenya’s pledges that the lesser cases would be prosecuted and witnesses would be protected. He spoke for the victims when he said: "Those women who were raped do not have to wait for judges to pass their verdicts."

But he said although there was no tribunal, a Witness Protection Unit or investigations going on, Kenya "was changing" and there appeared to be stronger political will to take action.

So far, the Government has fully co-operated with the ICC, and he had no doubts it would help enforce arrests if and when the time comes, he said.

Earlier, Ocampo warned there would be no running away from the court, and those trying to do so would soon be arrested and cited the cases of Ugandan rebel leader Joseph Kony and Sudan President Omar al-Bashir, who have eluded arrest since the ICC indicted them.

Regarding President al-Bashir, he said: "On the issue of arrest, it’s a matter of time. The victims can’t wait."

Security council

He added: "This is an opportunity to convert the "never again" into reality." But he lamented that even after arrest warrants were issued for the two, killings were still taking place in northern Uganda and Darfur, where al-Bashir’s government is accused of waging an organised campaign to kill civilians.

However, he said he would soon meet the UN’s Security Council to present the predicament facing the court over Sudan’s refusal to execute the warrant of arrest on their president.

On Kenya’s continued co-operation with Sudan, he said the court respected institutions and governments but has to do its work according to the law.

Meanwhile Kenya chapter of the International Commission of Jurists criticised Wako for being "vague" in advancing the position of the Government.

It cited lack of local investigations, lack of protection of witnesses and continued close ties with indicted al-Bashir as issues that put to doubt the Government’s pledges of commitment.

"The Government’s statement as to local efforts aimed at providing complementarity in the prosecution of international crimes in Kenya is, unfortunately vague. We know there are no genuine efforts in Kenya to establish local mechanisms to try ordinary offenders that perpetrated crimes during the post-election violence," said the ICJ in a statement issued on the sidelines of the conference and signed by Mr George Kegoro and Mr Albert Kamunde.

ICC also cited the confusion and suspicions within the Kenyan delegation, which have portrayed a picture of a nation divided along the political interests of coalition partners PNU and ODM.

It noted there was "considerable disharmony" in the Government in the way it engages with the ICC. "As part of this there is discordance in the processing of Kenya’s obligations towards the ICC," argued ICJ, and recommended the formation of a central secretariat to co-ordinate Kenya’s engagement with the court.

The ICJ said Kenya could not continue to claim to co-operate with the international court, yet go on doing business with leaders the court regards as suspects.

In the case of al-Bashir, Kenya appears unwilling to honour a warrant of arrest issued against him, as it is still engaging closely with his Government.

"Kenya must join the President of South Africa, Mr Jacob Zuma, who has publicly stated that should al-Bashir visit South Africa, he will be liable for arrest in line with terms of (the country’s adherence to) the treaty and domestic legal obligations."