Why ODM is against opposing ICC cases

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BY MIGUNA MIGUNA

There has been intense negative propaganda aimed at depicting the Orange Democratic Movement as inconsistent and hypocritical on the ICC issue, in general, and the admissibility challenge filed by the PNU/KKK faction within the grand coalition government. This article explains what the ODM position has always been in that regard.

ODM takes the position that:

(a) The decision to file an admissibility challenge should have been discussed and approved firstly between the President and the Prime Minister within the context of partnership of the coalition government pursuant to the National Accord and Reconciliation Act and the Constitution; secondly, by the Cabinet; and thirdly it should have been approved by the National Assembly. That wasn\’t done. Accordingly, the admissibility challenge has been filed irregularly and without any legal authority.

(b) In a representative democracy, the government is accountable to the people. No government can spend hundreds of millions of shillings – in this case more than one billion shillings – without legal and public approval. The decision to hire lawyers and instruct them to file an admissibility challenge was unilaterally made by the PNU/KKK faction within the grand coalition government without cabinet and parliamentary approval. That faction within the grand coalition government has irresponsibly committed to spend huge sums of public money without consulting the public and obtaining their consent. That amounts to abuse of office, looting and theft.

(c) The admissibility challenge that the two British lawyers has filed at the International Criminal Court on behalf of the six individuals indicted by the ICC Prosecutor Luis Moreno-Ocampo is also legally incompetent. Although the application attempts to portray the ratification of the new Constitution as a fundamental "change of circumstances" that warrants it being granted; the reality is different.

More than three years since the crimes against humanity were allegedly committed in Kenya by Uhuru Kenyatta, William Ruto, Henry Kosgey, Hussein Ali and Joshua Sang, no credible investigations and prosecutions have been conducted by the Kenyan authorities against the six or anybody other perpetrators. If the Kenyan authorities had credibly investigated and commenced genuine prosecutions that meet the standards of the Rome Statute, the admissibility challenge would be justified and supportable.

(d) As of now, there are no genuine investigations; there isn\’t a credible investigatory authority/agency/body that can conduct legitimate investigations: the current police force was deeply implicated to the extent that the former Police Commissioner Gen. Hussein Ali faces ICC indictment; the former head of the dreaded General Service Unit that was also heavily responsible for mass murders is the Police Commissioner; the head of the trigger-happy Administration Police still occupies the same position he did when his unit perpetrated horrendous extra-judicial killings in Kibera, Nakuru, Naivasha, Eldoret, Kisumu, Kakamega, Kericho and other places.

(e) There isn\’t an independent and credible prosecutorial authority or body that the Constitution prescribes.

(f) The judiciary hasn\’t been reformed and vetted as the Constitution requires.

(g) And ultimately, the prevailing political environment doesn\’t augur well for the establishment and operation of an independent, credible and impartial prosecution of the six individuals Moreno-Ocampo has indicted in Kenya.

Apart from the heightened political tensions that have been artificially generated, primarily by Uhuru and Ruto through their negative propaganda, ethnic mobilization and national security intelligence-funded country campaigns; there isn\’t political will on the part of President Mwai Kibaki and his PNU/KKK faction to charge and prosecute the Ocampo Six with the crimes they are facing at The Hague.

ODM supports the establishment of a credible local judicial mechanism – not a unit of the High Court – to investigate and try other perpetrators of the post-election violence. That has always been the ODM position. And it is something we can and should do regardless of what happens at the ICC.

The ICC isn\’t responsible for investigating and trying "lower level cadre" of perpetrators; it is only proceeding against the named six individuals who the Court has concluded bear the greatest responsibility for the crimes against humanity committed in Kenya between 2005 and 2009.

If the conditions enumerated above at (a) to (g) had prevailed prior to the issuance of the summonses against the six individuals by the Court, ODM would have supported a non-antagonistic approach to the ICC seeking a referral of the cases back to Kenya. In fact, if those conditions prevailed, even the ICC Prosecutor and the Court would have long voluntarily ceded jurisdiction to Kenya. In other words, the admissibility challenge could have been warranted only if those conditions were satisfied.

That was the understanding and agreement that the Government of Kenya had with the Office of The Prosecutor in 2009. Both the government and the ICC Prosecutor have always maintained that pursuant to the Rome Statute, the States Party has the inherent first jurisdiction. However, should the State be unwilling and/or unable – like the case is in Kenya today – to credibly investigate and genuinely try the alleged perpetrators; the ICC has the mandate and jurisdiction to do so.

Both the President and the Prime Minister had, on numerous occasions, both verbally and in writing, undertaken to either refer the cases to the ICC or have the Prosecutor move on his own motion to have the cases investigated and tried at The Hague if or when the grand coalition government, failed to institute the proceedings required by latest September 25th, 2009. Sadly, the Government actually failed to discharge its obligations and voluntarily allowed the Prosecutor to make an application permitting him to start investigations.

The Government never opposed the Prosecutor\’s application. If the PNU/KKK faction within government intended to argue that the Prosecutor shouldn\’t have been given the order to start and complete investigations; they ought to have done so at that moment in time. Moreover, after Moreno-Ocampo submitted the fruits of his investigations for assessment by the Pre-Trial Chamber II, there was no opposition or challenge from the Government or a section of it.

The Court approved the Prosecutor\’s evidence and allegations against the six individuals. Ironically, it was only after the Prosecutor unveiled the names of the six on December 15th, 2010 that an avalanche of activities aimed at undermining and subverting justice both at the ICC and here in Kenya begun. Why? Were the merchants of impunity expecting other names; not the six? If those opposed to the ongoing ICC process are genuine, why can\’t they submit all the information and evidence they have with regards to the international crimes that were committed in Kenya? Why did the same people and forces stop the "information taking sessions" of the security and provincial administration personnel that the Prosecutor sought?

Trying to use the promulgation of the new Constitution as the primary ground for the admissibility challenge is both erroneous and misleading. Asserting that the promulgation of the new Constitution itself constitutes "a material change in circumstances" is disingenuous, to say the least. The Constitution doesn\’t implement itself. By all accounts, the constitutional implementation process has been deliberately slowed down and/or hampered by retrogressive forces who would prefer to have grand corruption, gross human rights violations and the culture of impunity to continue.

Those hurling abuses at the ICC and the Prosecutor, Luis Moreno-Ocampo, are the same people who tried to undermine the constitutional review process and the referendum. At the moment, they are fighting tooth and nail to subvert all the positive values in the Constitution. These retrogrades know that the mere promulgation of the Constitution hasn\’t stopped or reduced the number of extra-judicial killings, illegal renditions and human rights abuses, which remain flagrant. Nor has it reduced impunity.

ODM has consistently called upon its coalition partner to accept that the ICC is the only independent, objective and impartial judicial process and arena where the six suspects can be tried at the moment. Kenya is a States Party to the Rome Statute. It has both ratified and domesticated the Rome Statute. Consequently, Kenya must fully cooperate with the ICC. Filing an incompetent admissibility challenge isn\’t a sign or proof of cooperation.

To argue, like Uhuru Kenyatta, William Ruto and their supporters are doing, that the ICC is a colonial court that is "persecuting" the two PNU/KKK presidential front-runners" is to live in denial. Kenya is a States Party to the Rome Statute. When it enacted the International Crimes Act and operationalized it more than three years ago; Kenya domesticated the Rome Statute. Consequently, the ICC became part and parcel of our domestic judicial process. It is therefore nonsensical to keep repeating the fallacy that the ICC is "colonial" and "foreign."

Why has the PNU/KKK faction hired British lawyers if they abhor anything foreign?

Let\’s appeal to the Ocampo Six, the PNU/KKK faction within Government and all Kenyans to appreciate that the rule of law accords the accused the presumption of innocence; however, the goal of the Rome Statute was to end impunity for the most serious crimes of international concern and to contribute to the prevention of such crimes.

We owe it to the hundreds of thousands of victims – those who were murdered, raped, maimed, injured and displaced – to ensure that the trials of the six who have been indicted happen in a credible judicial forum that is free from intimidation, threats, coercion, influence and bribery. At the moment, that can only be at The Hague.

Miguna is the PM\’s advisor on Coalition Affairs. The views expressed here are his own.

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