Bernard Namunane
3 November 2009
Nairobi — As an advance team from the International Criminal Court flew into the country last evening to prepare for the arrival of prosecutor Luis Moreno-Ocampo, Cabinet ministers were making last-minute plans to present a unified position against international trials for key suspects of post-election violence.
The ICC officials, drawn from various divisions of the prosecutor's office, landed on Kenyan soil as it emerged that the Cabinet was divided on the government's co-operation with Mr Moreno-Ocampo.
Ministers both from the Party of National Unity (PNU) and Orange Democratic Movement (ODM) held a series of meetings from Monday and Tuesday in an effort to ensure President Kibaki and Prime Minister Raila Odinga present a united position to the ICC prosecutor.
They want the two leaders to tell Mr Moreno-Ocampo that his intervention was premature and that the Kenyan justice system should be given a chance to resolve crimes arising from the post-election violence.
An opinion article by Foreign Affairs permanent secretary Thuita Mwangi is thought to reflect the view of powerful forces in government.
It argues against Mr Moreno-Ocampo's mission, taking the position that the ICC should not override Kenya's justice system.
The article also takes issue with the commission of inquiry into post-election violence -- which was headed by Mr Justice Philip Waki -- for inserting the self-triggering clause inviting the ICC if Kenya failed to establish a Special Tribunal to try those behind the violence.
The article also faults chief mediator Kofi Annan for handing the Waki list of violence suspects to Mr Moreno-Ocampo, yet he was in Kenya on an African Union mandate rather than an ICC or UN mandate.
Mr Thuita's article does not, however, explain why the government endorsed and promised to implement the Waki Report.
However, the article is believed to represent the predominant view in sections of government close to President Kibaki's thinking, and might therefore provide a glimpse of the message Mr Moreno-Ocampo might get from State House despite earlier pledges that the government would cooperate with The Hague.
Some ministers, however, were categorical that the government should arrest and hand over any persons, including Cabinet ministers, indicted by the international court over the violence that left 1,133 people dead.
On Tuesday, the ICC's Jurisdiction, Complementarity and Cooperation Division director, Ms Beatrice Le Fraper Du Hellen, confirmed that officials from Mr Moreno-Ocampo's office had left for Kenya to lay the ground for his mission.
Even though their movements were kept secret, sources said the team drew its membership from the divisions of jurisdiction, complementarity, prosecution, investigations and security.
Collating evidence
The division of jurisdiction and complementarity has the task of weighing whether the crimes committed were within the mandate of the ICC; investigations and prosecutions have to deal with collating of the evidence and charges against the key suspects while the security team will supplement Mr Moreno-Ocampo's security that will be provided by the government.
The ICC prosecutor was invited by President Kibaki and the PM to agree on the ways of trying ministers, MPs and business people suspected to have planned and financed the post-election violence. He and chief mediator Annan have insisted that both the ICC and a local mechanism should be used to punish both the plotters and the executors of the killings.
Ms Hellen said the prosecutor would give the President and PM the options of trying the main suspects after Parliament failed to pass a law establishing a local tribunal.
"He will explain how, in the absence of national proceedings, the prosecutor can open an investigation, either of its own authority or through a referral by the principals".
Should President Kibaki and Mr Odinga accept to refer the case to the ICC, they would have demonstrated their determination to end impunity, which has taken root in Kenya.
Ms Hellen said that referring the case to The Hague did not require the permission of Parliament.
"A referral does not require parliamentary involvement and does not contain any guidance on potential suspects. This will remain entirely a remit of the prosecutor," she said.
In Nairobi, both PNU and ODM were planning how to handle the meetings with Mr Moreno-Ocampo with a view to securing the trials of the suspects in Kenya.
PNU leaders were of the view that the ICC should allow Kenyan courts, with international participation, to carry out the trials.
While they were in agreement about the frailties of the Judiciary, they were emphatic that swift reforms could prepare the local law courts to carry out the trials.
The view, however, was not shared by Cabinet ministers George Saitoti and Mutula Kilonzo, who insist that key suspects should be ready to face the ICC.
Similar divisions were evident on the ODM side where the National Executive Council failed to strike a position on the trials.
Sources at the NEC meeting held at Orange House were categorical that ODM would demand the punishment of the heads of the Administration Police and regular police before touching on the politicians.
It was also understood that some members stated that those behind the "stolen" election should face punitive action before targeting the youths who threw stones and lit tyres to barricade roads during the violence.
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