Fred Oluoch
16 November 2009
Nairobi — 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 to ICC. 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.
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