The Nation (Nairobi)

7 January 2012

Kenya: Anxiety As Nation Awaits ICC Ruling

Photo: Julius Mwelu/IRIN
The post-election violence resulted in more than 1,000 deaths and the displacement of at least half a million Kenyans.

The three International Criminal Court judges handling the Kenyan case are scheduled to meet later this week to set the date on which to deliver the much-awaited ruling on the Ocampo Six.

The three are scheduled to hold a house-keeping meeting on January 13 at which point they will polish up any pending detail before they deliver the judgment.

Going by the timelines set out in the Rome Statute, the judges will have to deliver the ruling by January 20.

The Sunday Nation has learnt that the ruling will likely be delivered on Monday, January 16.

The ruling is awaited with much anticipation by the six suspects - all whom have protested their innocence - and by victims, Kenyans at large and the international community, as it is bound to cause ripples beyond the country's corridors of power.

The Sunday Nation has also learnt that an officer of the court has written to the government asking for more personal information regarding the six.

Last month, the Cabinet sub-committee on the ICC received a letter from the court requesting for the medical records of the suspects. (READ: ICC wants victims' medical data)

After discussing the matter, the committee agreed that the matter be left to the Attorney-General, sources who attended the meeting have told the Sunday Nation in confidence.

It is, however, yet to be established why the court is seeking such information from the government given medical records are between a patient and his doctor and this confidentiality is protected by law.

When the judges rule, they will either: confirm some or all the charges, reject the charges in total, ask the prosecutor to provide more evidence or to amend the charges if the evidence appears to establish a different crime.

Already, anxiety is heightening among the six and around the country as Kenyans await the outcome in the next 10 days.

The case has attracted local and international attention because it is the first time high ranking public officials have appeared at The Hague facing charges of crimes against humanity. (READ: ICC hearings whet appetite for justice)

The ruling is also likely to be a political game changer as it affects two key politicians who have declared an interest in the presidency.

Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto, who are among the six facing the charges, have declared they will run for the presidency when the General Election is called.

The duo, together with Tinderet MP Henry Kosgey, Head of Civil Service Francis Muthaura, former Police Commissioner Hussein Ali and radio presenter Joshua Sang, are suspected of indirectly perpetrating crimes committed during the violence that followed the 2007 General Election.

Mr Ruto and Mr Kosgey are suspected of being criminally responsible as indirect co-perpetrators for the crimes against humanity consisting of murder, forcible transfer of populations and persecution.

Mr Sang is suspected of having otherwise contributed to the commission of the murder, forcible transfer of populations and persecution but not as a direct co-perpetrator.

Mr Kenyatta, Mr Ali and Mr Muthaura are allegedly criminally responsible as indirect co-perpetrators for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts.

Although Mr Ruto and Mr Kenyatta insist they will run for the presidency despite the ruling, the quest may be a tough call should the charges be confirmed given that they would be required to attend trial in person.

Violate conditions

"If one or more charges are confirmed, totally or partially, against a defendant, that person will remain free, unless ordered otherwise by the judges if he violates the conditions put on him by their decision.

"However, the person will have to be present at The Hague for the trial. The Rome Statute does not allow trials in the absence of the defendants," said a statement issued by the office of the registrar of the ICC.

The two, however, argue that the Kenyan Constitution only bars those who are convicted from seeking election.

A legal complication would arise if one of the suspects became Head of State given some are of the view that it would be tougher to try a suspect who is President.

The politicians are also taking solace in the recent refusal by the court to confirm charges brought against Rwandan rebel leader Callixte Mbarushimana. (READ: ICC rejects bid to bar Rwandan rebel's release)

However, should the charges be confirmed, the two would find themselves out of active politics and also have some of their assets frozen until their trial is over.

In January last year, the ICC wrote to the Cabinet sub-committee on ICC requesting support in tracing, freezing or seizure of property of the Ocampo Six when the Pre-Trial Chamber judges issue summons.

In the letter, the ICC stated the procedure of tracing and freezing or seizure of proceeds, property and assets for the purpose of eventual forfeiture and compensation to the victims of the violence.

Before the confirmation of charges hearings at The Hague in September last year, agents had been tracing and profiling the assets owned by the Ocampo Six.

ICC froze the assets and accounts of Congolese rebel leader Jean-Pierre Bemba, who is on trial for crimes against humanity and war crimes allegedly committed during the conflict in the Democratic Republic of Congo.

An estimated $6 million (Sh480 million) worth of assets belonging to former Liberian President Charles Taylor held in 10 countries in Europe were frozen after a United Nations-backed special war crimes tribunal for Sierra Leone started prosecuting him for war crimes.

Under the International Crimes Act (2008), the government is bound to co-operate with the ICC regarding tracing and seizure of assets owned by ICC suspects.

Attorney General

Article 106 (a) and (b) of the Act states that where the ICC requests assistance in identifying, tracing and freezing, or seizing, any property for the purpose of eventual forfeiture, the Attorney General shall only give authority for the request to proceed if he is satisfied the request relates to an international crime and the property is or may be located in Kenya.

Once the suspect is tried and convicted, the judges can issue an order for transfer of such assets into the Victims' Trust Fund for disbursement to victims as reparations. But if the suspect is found innocent, the court must lift the freeze order.

The prosecutor has also written seeking an update on an earlier request that ICC investigators be allowed to take statements from provincial commissioners and police chiefs who served in hotspots during the post-election violence.

The investigators came into the country to take statements from the security chiefs but the matter wound up in the courts in Kenya and is yet to be determined.

Last February, the High Court temporarily stopped the process of statement taking.

Justice Daniel Musinga issued the order stopping Justice Kalpana Rawal from recording statements from senior officers who were in charge of areas hardest hit by the violence.

In the suit, two businessmen had moved to court challenging the recording of the evidence on grounds that it was against the Constitution.

Jackson Mwangi and James Ndirangu claimed the appearance of any Kenyan before Justice Rawal for evidence taking was illegal.

The file has now been forwarded to the Chief Justice for the appointment of a three judge bench to hear the case.

The Kenyan case landed at the ICC following Parliament's refusal to establish the Special Tribunal recommended by the Commission of Inquiry into Post-Election Violence chaired by Justice Philip Waki.

There were also attempts by the government to challenge the admissibility of the cases at the ICC as well as a diplomatic effort to have the United Nations Security Council ask the ICC to back down on the case. The efforts, however, flopped.

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