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Kenya: Govt May Back Out of Arrest Deal With ICC

9 November 2009

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Nairobi — The Kenyan Government on Sunday appeared to be having second thoughts about an agreement to arrest and hand over to the International Criminal Court election violence suspects.

Prosecutor Luis Moreno-Ocampo left Kenya last week believing that he had a firm promise from the government to arrest and send to The Hague the suspects once they are indicted.

“Kenya will arrest them. And Kenya leaders expressed openly this (sic) cooperation…their role is to arrest the persons. So it’s clear the pace has been decided, and for me, that is the most important thing that happened in my trip,” Mr Ocampo said at the end of his tour.

Change of mind

However, senior government officials, in background briefings to reporters, were either evasive or appeared to reflect a change of mind in government. The government agreed to cooperate in the investigations, they said, not in arresting the indicted suspects.

On Thursday, the government refused to grant Mr Ocampo permission to investigate the masterminds and financiers of the chaos in which more than 1,000 people were killed and 600,000 displaced in ethnic violence. The law allows Mr Ocampo to start investigations without a country’s permission so long as he can get a court order.

On the same day, the ICC appointed three judges to hear Mr Ocampo’s request to investigate the Kenyan suspects. He intends to go to court next month and have the suspects ready for trial by July. Asked at the weekend about the promise to arrest the suspects, Prime Minister Raila Odinga was non-committal. “We have not reached that hurdle yet,” he said.

Mr Ocampo said arresting suspects was part of the cooperation expected from countries which had signed the Roman Statute, the agreement establishing the ICC. The government is likely to come under diplomatic pressure to cooperate. Already, the US cancelled the visa for Attorney-General Amos Wako, accusing him of not doing enough to deal with corruption.

On Thursday, the officials argued that referring cases to the ICC would be an admission that Kenya is a failed state without functioning institutions. The officials pointed out that none of the countries whose citizens are being tried at the Hague took part in their arrest, a clear pointer that while the ICC’s work will not be overtly opposed, support might not be enthusiastic.

ICC arrest warrants can be effected by any country. Former Liberian leader Charles Taylor was seized in Nigeria while Democratic Republic of Congo’s Jean Pierre Bemba was cornered in the suburbs of Brussels in Belgium. The African Union has been complaining that the ICC has been quick to target leaders from the continent but did not pursue with as much zeal other violators of human rights from Europe, United States and Asia.

Africa has five cases at The Hague: DR Congo, Uganda, Liberia, Sudan and now Kenya. In public, the government is promising to cooperate with Mr Ocampo, if he gets the judges’ go-ahead to launch investigations. “We will cooperate with Ocampo because we are a signatory to the Rome Statute and we have an obligation to,” Justice and Constitutional Affairs minister Mutula Kilonzo told the Nation.

But the government has not given up establishing a tribunal to try the suspects at home, the only way the ICC’s process can be stopped. Mr Kilonzo said either the local tribunal or a special division of the High Court could serve the purpose if they meet international standards as set out in the Rome Statute.

In both cases, he said that powers of the President to pardon suspects, the Attorney Generals leeway of withdrawing cases and the chief Justice’s powers to transfer judges must be removed. Mr Ocampo, an Argentinian prosecutor, is confident that he has a strong case and will get the permission of judges Cuno Tarfusser, Hans-Peter Kaul and Ekaterina Trendafilova to start work.

Roads minister Franklin Bett criticised the agreement, arguing that Kenyans should take charge of their problems and stop looking for foreign solutions. He is from the Rift Valley, where the bulk of the crimes against civilians took place.

Agriculture minister William Ruto, who spoke to the Nation last evening, said Mr Ocampo was welcome to conduct investigations as long as they were credible. “My position has always been that any independent investigations that will unravel the truth are welcome. Ocampo is welcome, he deserves our support to carry out investigations that will yield the truth and not what the Waki Commission said,” he said.

Mr Bett said a problem in the house is solved by a man and his wife. The time had come, he added, for the residents of Rift Valley to speak with one voice and find ways to live together in peace.

“If you take Bett to The Hague and leave Kenyans baying for one another’s blood, have you solved the problem? We need a process that is all-inclusive and practical. Ocampo and (former UN secretary general Kofi) Annan came for a casual visit to Kenya and left us to live together as brothers and sisters,” said Mr Bett.

Reports by Bernard Namunane, James Kariuki and Sammy Cheboi

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