NAIROBI, Kenya, Jan 17 – Legal opinion is divided over whether a decision to reject charges in the two Kenyan cases before the International Criminal Court will be a denunciation of the prosecutor’s office.
International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo began investigations in 2010 on his own initiative into crimes committed during the violence that gripped Kenya after the disputed 2007 elections with a promise of making Kenya’s case “an example on managing violence.”
Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, Head of Civil Service Francis Muthaura, former Police Commissioner Hussein Ali and radio presenter Joshua arap Sang are suspected of indirectly perpetrating crimes against humanity and the court is set to rule by January 23 at the latest whether to confirm or reject the charges against them.
Kenyatta, Ruto, Kosgey and Muthaura are suspected of being criminally responsible as indirect co-perpetrators in the commission of crimes against humanity consisting of murder, forcible transfer of populations and persecution.
Sang and Ali are suspected of having otherwise contributed to the crimes.
According to Judy Gitau of the International Commission of Jurists (ICJ) Kenya Chapter, the decision declining to confirm charges against the six Kenyan suspects will not dent the image of the prosecutor’s office.
Gitau argues that the case against the six Kenyans has been overly politicised since the main suspects are politicians who have ambitions of becoming president in the next general election.
She contends that the decision will nonetheless be a legal one and not political and that the cases are not different from other scenarios.
“It is a case like any other but since charges have been brought against political figures we have made it to look like it’s a battle between the politicians and the ICC. The reality is that it is just a case like any other. If it is dismissed it is as practical as such,” she explained.
She said that the office of the prosecutor is made up of different other departments so that presentation of a strong case for prosecution is a collective effort and not just an effort of the prosecutor.
Gitau told Capital News that justice has to be done both ways and that the prosecutor’s main aim is to achieve justice not just by sending suspects to trial.
She said that a decision by the court declining to confirm charges against the six will not mean that the alleged crimes did not happen but prolongs the search for justice by the victims.
“The office of the prosecutor is not the person; it is an institution with investigators and an entire team. Within a case the success is not in the idea that a person is proved guilty, it is when justice is done; when an accused person is put on the stand and a prosecutor has conducted thorough investigations and has irrefutable evidence.”
She said that Kenya will be much more affected by a negative decision rather than the credibility of the office of the prosecutor as the perpetrators of the crimes have to be brought to book while the victims wait longer.
“As a country we still have 1,200 people killed… about a thousand other sexual and gender based violence (unresolved) and the road for justice for these ones amongst us becomes protracted.”
Critics will however question the credibility of the office of the prosecutor if the chamber declines to confirm charges against the six Kenyans just weeks after the court declined to validate war crimes charges and crimes against humanity against Callixte Mbarushimana for lack of sufficient evidence.
Mbarushimana was charged with 13 counts; five of crimes against humanity which included murder, torture, rape and eight counts of war crimes including attacks against the civilian population.
David Matsanga, a conflict resolution expert believes that the credibility of the outgoing prosecutor Luis Moreno-Ocampo will be badly dented if the chamber declined to confirm the charges.
Matsanga maintains that Ocampo failed in his investigative duties and as such cannot put up a strong case against the six.
“The impact on the credibility of the prosecutor’s office will be devastating; he was given three months to conduct investigations, if the cases are thrown out it shows the prosecutor’s investigative capabilities,” said Matsanga.
On a wider perspective, Matsanga is of the belief that the African continent will also lose interest in the ICC as result of the feeling that the continent was the court’s main target as all seven cases investigated by the court emanate from Africa.
The African Union has pressed for the UN Security Council to suspend the genocide action against Sudan’s president Omar al Bashir while it has resolved that its members should not cooperate with the court in apprehending al Bashir.
Matsanga who has opposed the proceeding to trial of the two cases is however still open to the fact that they might as well proceed to trial, as the ICC will not let go of cases that he says have attracted much attention.
“The court knows that everybody in the world takes Kenya, handles Kenya and looks at Kenya as a nation that is progressing politically economically and as a country in which democracy is taking root,” he said.
The two however agree that Kenya needs to set up a credible internal mechanism to deal with those who played various roles in the violence to prevent the active participation of the ICC.
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