ICC says Kenya suspects to remain secret

July 16, 2009 12:00 am

, NAIROBI, Kenya, Jul 16 – The contents of the Waki envelope will remain confidential even after they have been perused by the International Criminal Court prosecutor Luis Moreno Ocampo, who says the primary role of probing last year’s post-election violence rests with Kenyan authorities.

Mr Ocampo who received two reports from Attorney General Amos Wako on the operationalisation of the witness protection programme and crimes committed during the post-election violence said  Kenya has until June next year to set up mechanisms to deal with the perpetrators.

"On receipt of these materials, the Prosecutor will open the sealed envelope and reseal it after examining its content. The content of the envelope will remain confidential, there will be no leaks," the Prosecutor said in a statement.

He said the findings of the Waki Commission were important but were not binding to his office.  "I should reach an impartial conclusion. I am grateful to Kofi Annan and Justice Waki for transmitting this information and for their contributions to our common goal in fighting impunity."

Mr Ocampo disclosed that the situation in Kenya had been under preliminary examination by his office since last year, but no decision has been made whether to open an investigation or not.

"We will consider in particular the existence of national proceedings. The Kenyan authorities are discussing options to establish a national court to prosecute these cases. In accordance with the Rome Statute, the primary responsibility for investigating and prosecuting these crimes rests with Kenya," Mr Ocampo said.

He added: "If the Kenyan Parliament does not reach an agreement to establish a specific judicial mechanism to deal with the problem, the Kenyan government has committed to referring the case to the ICC by June 2010."

This week the Cabinet failed to agree on the provisions of setting up the local tribunal and the matter is expected to be discussed further next week.

"There will be no impunity for the crimes that have been committed; this is the only way to prevent the commission of new crimes during the next elections," he said.

The International Criminal Court is an independent, permanent court that investigates and prosecutes persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes.

Mr Ocampo spoke as diplomats based in Nairobi urged the Cabinet members to bridge their differences and rally Parliament to establish a local tribunal to try the suspected perpetrators of the violence that rocked Kenya following disputed polls last year.

The missions maintained on Thursday that a local judicial mechanism was the best way for Kenya to address the post election crisis and discredited the wide belief among politicians and civil society that taking the suspects to the ICC was a better option to address impunity.

"It is important to recognise that the ICC could only prosecute a limited number of those responsible for post election crimes. Action by the ICC will not absolve the Kenyan government of responsibility to provide wider justice for the victims," the statement read by Swedish ambassador Anna Brandt said.

Twenty EU missions backed by the United States, Canada, Japan, Norway and Switzerland however cautioned that the tribunal should adhere to the provisions of the Waki Commission recommendations.

They said that the tribunal must have a significant international involvement, prerequisite independence and a strong witness protection mechanism.

"The tribunal will require guarantees for the independence of the prosecution and judges to decide whom to take action against, free from interference by any part of the Kenyan judicial or political system," Ms Brandt reiterated adding that achieving this would underline the politicians’ commitment to ending impunity.

They made it clear that they would not accept a watered down local tribunal.
Disagreements at Tuesday’s Cabinet meeting centred on denying the President powers of pardon and the Attorney General the privilege to withdraw cases as provided in the Constitution. The Chief Justice would also have no powers to transfer any judges attached to that court while the High Court will not have a chance to issue any injunctions.

The Missions advised Kenya that going to the international court should be the last resolve.

"If and when the Prosecutor takes over the cases – we having ratified the Rome Statute that created the ICC – will assist the court in the investigations," Netherlands Ambassador in Nairobi Laetitia Assum said.

The diplomats added that a strong Truth, Justice and Reconciliation Commission was necessary to reconcile the country.

Last year’s skirmishes left at least 1,300 people dead and more than 600,000 others displaced.


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