Gikonyo Gitau
7 November 2008
Nairobi — The US presidential election is over and the result is historic and monumental.
Barack Obama is now the president-elect of the most powerful nation in the world, and all eyes are on how he will fashion his domestic and foreign policies.
As the dust begins to settle, we must refocus our attention on our own issues, particularly the grand coalition government's survival and the Constitution.
We have the chance to introduce dual citizenship and have Obama run for the Kenyan presidency in eight years' time.
He has in the past expressed views on Kenya, and it is not a matter of speculation what his stake would be on the Waki recommendations.
PNU recently came out in favour of a local tribunal and rejected the International Criminal Court option.
Of course, if the tribunal is set up according to the international standards, then the ICC issue fall away.
But with ODM having trashed the Waki recommendations, the coalition government is poised to be a two-headed a snake. One wonders which head will prevail.
It is most embarrassing that some ODM leaders, such as Prime Minister Raila Odinga and Deputy Prime Minister Musalia Mudavadi, were until recently favouring the full implementation of the probe recommendations.
But they were forced to read from a different script prepared by their opponents. What is lacking here is Obama's conviction and courage.
The situation the coalition government is caught in reminds me of lessons I learnt from my grandfather. One of the most difficult things is removing one's own tooth.
If you doubt it ask any dentist. But my grandfather had courage and used to remove them himself. Most probably Obama is another person who would do it; the rest of us are cry babies.
My grandfather had two ways of removing his; he would tie one end of a string around the particular tooth and the other to a stool or a rock as he continued conversing with you.
Then he would suddenly throw away the object, sending it with the bad tooth.
If the tribunal is not set up, we will soon hear from the ICC. But would the surrender of suspects on the Waki list be consistent with international law?
Some people contend that the ICC has no jurisdiction to try them, arguing that Kenya is not a party to its statute, and that the general provisions of the Geneva Conventions of 1949 are not applicable because the post-election conflict was not of an international character.
The hostilities took place solely within Kenya and any massacre, if at all, was not an international armed conflict.
Another notable argument is that the rules of customary international law of warfare are not applicable as they only do so where there is a state of war recognised and regulated by international law.
The post-election violence cannot therefore be said to amount to an armed conflict as it is not between sovereign states, others say.
But if your name is on the list be sure that the ICC has the jurisdiction to try you.
It is also argued that Kenya does not recognise the ICC and that, in any case, the country's consent has not been sought or obtained.
But the fact is that the international legal order acknowledges other law-making processes capable of generating obligations on states without their consent or against their will.
State practice recognises the delegability of universal jurisdiction to an international tribunal.
The Nuremberg tribunal was a delegation of universal jurisdiction by the US, France, Britain and the then Soviet Union. Germany's consent was not sought.
Similarly, UN member have delegated their jurisdiction to the ICC, doing together what anyone of them can do on its own.
Thus, although Kenya may not be a state party to the ICC statute, other parties can exercise universal jurisdiction over Kenyan citizens.
But these states have delegated the jurisdiction to the ICC.
Where pieces of legislation have crystallised into the customary international law, they apply to all states. Thus, Article 2 (6) of the UN Charter applies to all states, regardless of whether or not they are UN members.
In its advisory opinion on reservations to the Genocide Convention, the International Court of Justice stated: "Principles underlying the Convention are principles which are recognised by civilised nations as binding on states, even though without any conventional obligation."
Thus, a state can be bound without being a party to a statute.
The next ground to consider is that the ICC has jurisdiction to try anybody by virtue of individual criminal responsibility.
International tribunals have jurisdiction to try people charged with international crimes.
The idea that individuals may be criminally responsible for some acts, which constitute crimes under international law, regardless of the law of their states, is an accepted and recognised aspect of international law.
States, therefore, have authority to bring people accused of crimes under international law before an international tribunal rather than their national courts.
Under the customary international law and the general principles of criminal law, individuals may be held criminally liable for their participation in the commission of offences in any of the capacities or modes of participation.
The underlying basic assumption of individual criminal responsibility is founded upon the principle of culpability; that is no-one may be held criminally responsible for acts or transactions in which one has not personally engaged or in some other way participated.
In its first interim report, the commission of experts on former Yugoslavia stated: "States may choose to combine their jurisdiction under the universality principle and vest this combined jurisdiction in an International Tribunal."
Article 6 (1) of te ICTR statute stipulates: "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in ...the present Statute, shall be individually responsible for the crime."
Article 25 of the ICC statute provides that it shall have jurisdiction over natural persons, and that a person shall be individually responsible for a crime within the ICC jurisdiction.
There is no doubt that crimes against humanity occurred during the post-election violence.
The complementarity principle has also been cited, but the fact is that it does not oust the ICC jurisdiction.
Kenya is unwilling or unable to genuinely investigate and prosecute people whose names are on the Waki list.
The ICC is intended to "complement" the national criminal courts, and this applies only where the national court jurisdiction is not available or ineffective.
The applicable ground allows the ICC to declare a case as admissible where a state is unwilling or unable to genuinely investigate and prosecute.
It must be borne in mind that the ICC is not a political organisation. It is a court, and courts operate by different rules.
As the prosecutor, Luis Moreno-Ocampo said the other day regarding President Omar al-Bashir of Sudan, "I don't have the luxury to look away. I have the evidence."
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