The East African
By FRED OLUOCH (email the author)
Kenya will be the first country to have
its nationals go through the pre-trial
chamber process at the International Criminal Court.
This means the country will be offering
the Netherlands-based ICC, which was
constituted in March 2003, the opportunity
to prove its independence, demonstrate
to the rest of the world its ability to move
forward without a state referral, particularly
where the court may often be most needed,
like when state officials are
implicated in serious crimes.
The Democratic Republic of Congo (DRC)
was the first country to have her national,
Thomas Lubanga, tried at the ICC.
The Kenyan government recently declined
to refer the post-2007 election cases
to the ICC, forcing its chief prosecutor,
Louis Moreno-Ocampo, to for the first time
invoke his powers under Article 15 of
the Rome Statute to move on his
own motion, or proprio motu powers,
to open investigations.
All the cases currently before the ICC
were either referred there by their
own governments or as a result of
the United Nations Security Council resolution.
Of all the four cases being tried or investigated
by the court, three of them — those of Uganda,
Central African Republic and DRC — were
referred by their own governments.
That of Sudanese President Omar al-Bashir
was referred by the UN.
Elizabeth Evenson, a counsel in the International
Justice Programme of Human Rights Watch,
however says Kenyan leaders could still
refer the situation to the ICC.
She argued that such a referral would
save this step and potentially
move investigations forward.
"Investigations and prosecutions by
the ICC will require the full cooperation
of Kenya's authorities, including on arrests.
Kenya's leaders need to signal
unequivocally that the ICC will have
their full support," Ms Evenson said.
The refusal by the Kenya government
to refer the cases to The Hague, even after
failing to establish a local tribunal,
is being interpreted internationally as
either fear of political repercussions
at home or tolerance of impunity.
Last December, President Mwai Kibaki
and Prime Minister Raila Odinga agreed
to establish a special tribunal
to try these crimes.
Instead, just a few months later,
they failed to persuade parliament
to support the bill establishing
a local tribunal.
In July, a Kenyan delegation promised
Mr Moreno-Ocampo that either Kenya
would hold national trials or trigger
the ICC's jurisdiction by referring
the situation to the prosecutor.
An ICC investigation, however,
will not end the obligations
of Kenya's leaders.
Investigating and bringing to trial
those responsible for the most serious
international crimes during
the post-election period will take time
and will need the co-operation
of the authorities.
While a private member's Bill that seeks
to establish a local special tribunal
remains pending, Kenyan leaders have
not shown commitment to getting it approved.
Imenti Central MP Gitobu Imanyara
drafted the Bill, which failed to be
debated by parliament last
Wednesday owing to lack of quorum.
Other African countries like Uganda,
Central African Republic and DRC took
advantage of Article 14 to refer cases
Uganda referred the case of
Joseph Kony of the Lord's Resistance Army,
while the DRC has the majority of referrals,
among them Lubanga, Germain Katanga
and Mathieu Ngudjolo.
Of late, there has been speculation within
the Kenyan political class that
the names of some of the suspects
have been struck out.
But the Kenyan Minister for Justice,
National Cohesion and Constitutional Affairs,
Mutula Kilonzo, says such elimination
is a legitimate method of doing away
with unsubstantiated evidence.
But he insisted that the time for knowing
who will be charged is still
several months away.
Mr Kilonzo observed that Kenyans have
been preoccupied with names although
the issues the prosecutor is looking at
is whether international crimes
were committed in Kenya
and what type they are.
Sent from Kigali, Rwanda