The Star (Nairobi)

30 March 2012

Kenya: ICC Trials May Start March 2013

THE trial for four Kenyans accused of crimes against humanity at the ICC might not start this year judging by past cases.

Preparations for the trial typically run into months or up to a year depending on a number of things. Among these is the speed of the participants, promptness of the judges and the various applications to be made. Yesterday, ICC spokesman Fadi Abdalla confirmed that there is no specific time-frame by which the trial should begin once a trial chamber has been constituted.

On Thursday, the ICC presidency constituted a single trial chamber for the two Kenyan cases. The judges to sit in the trial are Kuniko Ozaki, Chile Eboe-Osuji and Christine Van den Wyngaert. "After the setting up of the trial chamber, which has now happened, preparations for the trial will begin. There are not time-frames under the ICC legal instruments for this," said Abdalla who is in Nairobi.

Only four cases at the ICC have reached the trial phase. Of the four, none took less than a year between the confirmation decision and the beginning of the trial. In the case against Congolese rebel leader Germain Katanga, the confirmation decision was issued on September 26, 2008 and trial started on November 26, 2009, one year and two months later.

The case against Congolese Mathieu Ngudjolo was also confirmed on September 26, 2008 and trial began on November 24, 2008. Jean-Pierre Bemba's trial started on November 22, 2010, one year and five months after the confirmation on June 15, 2009. The case against Thomas Lubanga took the longest. Lubanga's charges were confirmed on January 29, 2007 but the trial started exactly two years later on January 26, 2009. He was convicted three years later in 2012 and is awaiting sentencing.

Going by the ICC record, the court is unlikely to commence trial before March 2013 when the next election is due to take place. Two of the four Kenyans charged by the ICC, Eldoret North MP William Ruto and Deputy Prime Minister Uhuru Kenyatta, have indicated that they intend to stand for president.

It is however possible for the ICC to speed up the Kenyan cases. Reportedly the ICC is concerned by political campaigning of Ruto and Uhuru at their 'prayer' rallies. If the trial coincides with the election, it will be impossible for Ruto and Uhuru to run for presidency as they will have to be physically present at the Hague for trial.

Yesterday, Abdalla said the preparatory phase will entail procedural issues including disclosure of evidence by the participants and agreement on the calendar for disclosure. He said the judges might ask for submissions from participants on a number of preliminary issues. He also explained why judge Christine of pre-trial chamber was appointed to the trial chamber. He said the rules of the court allow the presidency to temporarily assign judges from one chamber to another.

Abdalla was speaking at the sidelines of a BBC Radio sponsored debate on ICC at Strathmore University yesterday. In the debate, participants were divided on whether the ICC was unfairly targeting Africans. The CEO of Pan African lawyers Union, Donald Deya, said plans are afoot to set up an African version of ICC under the African Court of Justice. He said his group had submitted a draft proposal to the African Union that might be adopted at AU summit in Malawi in June.

Abdalla said any efforts to end impunity in Africa are welcome to the ICC. He denied ICC was targeting Africans saying most of the cases were referred to the court by Africans themselves or with the support of Africans. "These (African leaders) are creatures of the Western empire and not Africa. They should look for way of disciplining their own delinquents," said Rev. Timothy Njoya.

Kenya's first lawyer to be admitted to practice at the ICC, Boniface Njiru, told the debate that he is "terribly disillusioned" by way the court is targeting Africa. Ugandan lawyer Barney Afako agreed and said Africa is best suited to solve own problems. Senior Counsel Paul Muite said African leaders had gotten away with impunity for too long. He said no African country was forced to join the ICC. "Yes, it is true Africa has impunity problems. The issue is who should deal with this. And the answer is 'yes the ICC is the right place but it is in the wrong hands'," Prof. Peter Kagwanja said while complaining that it was funded by non-African countries.

Star columnist Ngujiri Wambugu said Kenyan leaders are opposed to the ICC because they have realised that it is unstoppable, effective and uncontrollable. Another Star columnist Pheroze Nowrojee said it is the African leaders who have credibility and legitimacy problems in the eyes of African masses, not the ICC.

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