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Kibaki steps up fight as ICC ruling draws closer

By | March 8th 2011

By Martin Mutua and Ally Jamah

President Kibaki’s emissaries meet UN Secretary General Ban Ki-moon on Tuesday as it emerged judges at The Hague could rule next week on whether evidence gathered on the ‘Ocampo Six’ will sustain a trial.

Sources within the separate defence teams for the ‘Ocampo Six’ revealed they were expecting the Pre-Trial Chamber II Judges to read out their verdict, either on Tuesday March 15 or the next day.

The judges could rule that there is insufficient evidence against the six prominent Kenyans — three each from Kibaki and Prime Minister Raila Odinga’s sides of the Government — to stand trial, or that there is enough evidence for them to summon the suspects to appear at The Hague as requested by ICC Prosecutor Luis Moreno-Ocampo.

But according to the ICC website on Kenya’s cases, the judges, in the worst case scenario, also reserve the right to issue arrest warrants against the suspects, if they deem the charges against them and the evidence produced serious enough to warrant such a measure.

The team dispatched by Kibaki to meet Ban Ki-moon, led by Vice President Kalonzo Musyoka, flew out on Sunday evening, literally racing against time to block the ICC cases for at least a year.

This is the period within which the country expects to have completed the necessary judicial reforms, and established a credible special judicial tribunal to handle post-election violence cases.

Kalonzo, who is the pillar of the shuttle diplomacy in support for deferrals, is also expected to meet US State Department officials.

But global attention on Kenya’s cases with ICC was refocused by The Hague’s Presidency’s decision on Monday to assign the situation in Libya to Pre-Trial Chamber I judges.

This followed a unanimous decision of the UN Security Council, which Kibaki’s group is lobbying, to refer clash-torn Libya where the besieged regime of Muammar Gaddafi is barely holding on to power by brute force, to the ICC.

Kibaki is pushing for the deferral of the cases without the support of Raila Odinga, Justice Minister Mutula Kilonzo and Attorney-General Amos Wako, who argue the move would further isolate Kenya, and project her as an arena for impunity in Africa.

In addition, Wako and Mutula argue legally, the country has no case because the judges’ ruling has not come, and it is premature to lobby for deferral as this could be construed to mean the country is already pre-judging itself.

The new developments came as 37 civil society organisations from across Africa wrote to three African countries sitting in UN Security Council urging them to withdraw their support for Kenya’s bid. In a letter to the foreign ministers of South Africa, Nigeria and Gabon, the activists told them to reconsider support for an Article 16 deferral. They included six local NGOs.

Article 16

"Any deferral under Article 16 would be contrary to the law and would further delay justice for the victims of crimes committed during the violence that followed Kenya’s 2007 polls," they wrote. Lands Minister James Orengo predicted the efforts to defer the cases would fail because the PM’s allies were ignored.

"They should come so that we as ODM can tell them how it is supposed to be done, otherwise even if the President sends 100 ministers, it will still be a waste of time and taxpayers money," added Mr. Orengo.

But as divisions within Grand Coalition Government continued to hamper the efforts by Kenya to speak with one voice, it also emerged the judges could overlook Moreno-Ocampo’s request for summonses to appear, and issue warrants of arrest instead.

The communication posted by ICC’s Outreach Department explains the judges have the leeway of enhancing the request Moreno-Ocampo made.

"If the Chamber is not satisfied that summonses are sufficient to ensure such appearance, it will issue warrants of arrest instead," says the communication.

The judges, it goes on, will issues summonses to appear if it is satisfied they are sufficient to ensure the attendance of the suspects. However, if the Chamber finds that the evidence provided by Moreno-Ocampo is not sufficient to meet the reasonable grounds standards, it shall decline to issue any summon or warrants, effectively rejecting the prosecutor’s case.

But then again, a rejection at the first stage may not mark the end of the cases against the six, since Moreno-Ocampo reserves the option of filing new evidence. The communication directs further queries to Jelena Vukasinovic, ICC Associate Legal Outreach Officer.

But even as the gravity of the possible outcome of the case continues to weigh on the six suspects, lawyers representing them reveal they are certain evidence presented by Moreno-Ocampo to not link their clients to any crimes.

But several of them are convinced the judges will rule in Ocampo’s favour because of international politics. The ‘Ocampo Six’ are: Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura, Postmaster General Hussein Ali on the one hand, and Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and Kass FM radio journalist Joshua Arap Sang on the other.

One of the lawyers said even though the two cases are weak, it is "politically right" for the judges to issue the summonses to satisfy the wishes of international community. "But we will prove in court that the evidence amounts to nothing" he said.

Another lawyer says judges appear to have made up their minds, given the string of rulings they have made against their attempts to raise questions about the case filed by Ocampo. But though lawyers believe ICC process is unstoppable, not so Kibaki.

Flew out

The Head of State’s chief globe-trotter, Kalonzo left on Sunday together with Agriculture Minister Dr Sally Kosgei who was headed for Brazil, a non-permanent member of UN Security Council, while Trade Minister Chirau Mwakwere is leading similar efforts in Bosnia and Herzegovina and Portugal.

Kalonzo’s spokesman Kaplich Barsito on Sunday told The Standard the VP was scheduled to meet the Bank Ki-moon today. Besides the diplomatic efforts to woo the UN Security Council, there were unconfirmed reports a team of State lawyers had been dispatched to The Hague to try and convince ICC to suspend Ocampo’s cases.

Sources told The Standard the legal team, led by a senior officer in the State Law Office, are already at The Hague, adding that Wako was sidestepped because of his position on the matter, and his contradiction of the President on his recent controversial nominations of individuals to four key constitutional offices.

Mutula argues that until the Judges decide the six individuals have a case to answer, there is nothing for the Government to contest. "To ask for deferral is to say the court has jurisdiction and international crimes occurred, and what the Government wanted is to be given time to prosecute the ‘Ocampo Six’," he argued.

He added that deferral, according to the International Crimes Act can only be requested and granted at the commencement of investigations or prosecutions.

The Minister argued the only option left for the Government is to utilise Article 19 of the Act by filing a petition to block the admissibility of the two cases on the ‘Ocampo Six’.

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