BY MOSES CHELANGA
Four years ago, the International Herald Tribune ran an opinion on the International Criminal Court titled “A Court Too Far”. The heading like the body is very telling. The bulk, if not all the cases in the court emanate from Africa yet the court is thousands of miles away from the continent which is said to have an almost monopoly of crimes against humanity, war crimes and genocide.
Rwandan President Paul Kagame is on record saying “with ICC all the injustices of the past including colonization, imperialism, keep coming back in different forms. They control you. As long as you are poor and weak there is always some rope to hang you. ICC is made for Africans and poor countries.”
Whereas opinion polls indicate that Kenyans are supportive of the ICC process, part of the political class hold the view that ICC is a foreign court meant to sacrifice Africans including the four Kenyans indicted for various crimes humanity, ICC politics and dynamics intend to jettison some of the accused persons from the presidential boat. Be that as it may, legitimacy has been an albatross around ICC’s neck and it is conscious about it.
Confronted by this legitimacy question, my crystal ball tells me that ICC may request to have its trial chamber in Kenya to try the four indicted Kenyans, depending on the outcome of the appeal now pending. The trial chamber for the avoidance of doubt shall be an ICC chamber, although within the territory of the Republic of Kenya and not a special division of the Kenyan courts or a local tribunal.
Readership of Article 3(3) of the Rome Statute with Rule 100 of the Court’s Rules of Procedure and Evidence provides that whereas the seat of the court shall be at the Hague in the Netherlands, the court may sit elsewhere it considers “desirable and in the interest of justice”. The Prosecutor, the defence or the majority of the judges of the court may make an application or recommendation to the Court’s Presidency to have the Court sit elsewhere other than The Hague. Effectively therefore, the Court may legally hold its trials in Kenya.
There was an attempt by the Pre-Trial Chamber II to hold the confirmation of charges hearing in Kenya for the “Ocampo Six” last year. In June 2011, the chamber invited then six suspects to make representations as to whether or not the confirmation of charges hearing to be held within the territory of the Republic of Kenya, apparently the chamber had inclined to hold the confirmation of charges hearing in Kenya.
However all the suspects but Tinderet legislator and Industrialisation Minister Hon. Henry Kosgey objected the move to hold the confirmation of charges hearing in Kenya. The Government also expressed its reluctance for such suggestion. One would then wonder why the foul cry on the distance of the court when the court wants to make your work easier and come to you instead of going to the court?
Should there be a recommendation and request for cooperation to hold ICC trials in Kenya in respect to the four Kenyans, the government should seize the opportunity and cooperate with the court. The recent trend of the government and the State Law Office has been an impermissible incestuous obsession with the accused persons at the expense of other interests including victims’ and the public (maybe because some of the accused persons are the president’s close confidants).
The government should be properly advised that criminal justice is like a three legged stool of the need to punish criminality, protect the rights of the accused persons and ensure that the victims get justice such that over-emphasis on one leg is an injustice. I however doubt if the good law professor is capable of objectively advising the government given his recent innumerable goofs including vouching for state non-cooperation and disobedience of court order in the arrest of Sudanese President El-Bashir notwithstanding that Kenya has no substantive strategic interests in Khartoum.
Although Uhuru Kenyatta, William Ruto and Francis Muthaura can easily afford trips to and from Hague with highly priced defence teams, the ICC process is an expensive process by any standard. Radio Journalist Joshua arap Sang could only afford it by legal aid. As I have maintained time and again, criminal justice is larger than the accused persons.
As it could be remembered, Kenyans were glued to the televisions watching the live streaming of the proceedings from The Hague during the confirmation of charges hearing. To say that the proceedings do not elicit public interest will be dishonest, after all the alleged crimes are crimes against the humanity including the people of Kenya.
An ICC trial chamber in Kenya will considerably cut the cost of bringing the proceedings live to Kenyans. The media houses will cut the cost of sending their journalists abroad for the purpose of these proceedings; Kenyans who would want to attend the court will do so at ease, it will afford public and victim participation in the justice process.
The people of Kenya will be able to feel and touch the justice system exorcising the ghosts that visited their country in December 2007 and January 2008. Anybody who argues that holding the trials in Kenya shall precipitate chaos is inciter who should be arrested and prosecuted. Kenya hosts international organizations such as United Nations Environmental Programme Headquarters, to say that hosting ICC chambers in Kenya would bring chaos is an oxymoron.
Bringing ICC in Kenya shall also expose the Kenyan judiciary and the office of the Director of Public Prosecutions to international standards and practices which may come in handy should the much touted special division of the High Court be created to try “other perpetrators” of the 2007/2008 violence.
In solemn discharge of its international obligation, in fidelity to Article 2(6) of the Constitution that any treaty ratified by Kenya is corpus of Kenyan law and the expectation that the Rome statute is pegged in the principle of complementarity, the Government of Kenya ought to cooperate should the opportunity present itself.
(Moses K. Chelanga is an advocate of High Court of Kenya and Legal Consultant, Email:[email protected], Twitter @mchelanga)