, NAIROBI, Kenya, Nov 6 -The government has defended its move not to refer the trial of post election violence suspects to the International Criminal Court (ICC) saying this was guided by the desire to ‘safeguard’ ongoing institutional reforms.
Justice and Constitutional Affairs Minister Mutula Kilonzo said on Thursday that a self referral was likely to receive some resistance from a section of Members of Parliament further undermining the pace of reforms. Mr Kilonzo said the decision was unanimous within the top leadership and was based on the desire to sustaining the pace of reforms which has lately hastened.
“There are so many commissions that are undertaking critical institutional reforms and by self referral, you want to mean that you want to wish away some Kenyans (MPs) who will be useful in participating in those processes,” he said.
After a two hour meeting with Chief Prosecutor Luis Moreno Ocampo on Thursday, the government declined to commit a hand-over of the trials to The Hague-based court, but instead said it “would work with the court within the Rome Statute”.
President Mwai Kibaki and Prime Minister Raila Odinga said the government remained “fully committed to discharge its primary responsibility in accordance with the Rome Statute to establish a local judicial mechanism.”
“I am satisfied that the government is right not to make a self referral but to leave the Prosecutor to do it on his own motion because he has a lot of power within his mandate,” said the Justice Minister who has openly said that he would want to see warrants issued before Christmas.
The government also rejected a proposal to allow the ICC to conduct trials in Kenya on fears that this could compromise national cohesion.
“I cannot allow prosecutions to be taking place probably in Mombasa whereas the public mood is, ‘Don’t be vague got to The Hague’…. no way” he said.
A self referral, Mr Kilonzo added, could also be challenged by suspects under the Rome Statute.
“Article 15 of the Rome Statute states if the prosecutor succeeds in convincing the pre-trial chamber no one can challenge that ruling,” he said.
Mr Kilonzo however reiterated that all was not lost in the search for justice despite two unsuccessful attempts to set up a local tribunal. Mr Ocampo said he would be moving to the pre-trial chamber to seek approval to commence investigations.
“Its going to be heavy duty from December and nobody should think it is going to be picnic time,” Mr Kilonzo said.
Central Imenti MP Gitobu Imanyara is still pushing ahead with a Bill to set up a local Tribunal which is widely expected to deal with majority of the post-poll offenders. It is likely that only two or three people will be indicted by The Hague with suggestions that they include Cabinet Ministers who were implicated in funding or organising the mayhem.