THE ICC has dismissed the proposal that the Ocampo Four cases can be transferred to the East African Court of Justice in Arusha.
Spokesman Fadi Abdalla said it is "technically impossible" to transfer the Hague cases in the manner suggested by the East Africa Legislative Assembly last month. He said the cases can only be taken off the ICC jurisdiction through procedures stipulated in the Rome Statute.
Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Civil Service head Francis Muthaura, and radio presenter Joshua arap Sang are facing charges of crimes against humanity arising out of the post election violence in 2007 and 2008. "On a general note, we can not speak technically about a "transfer" of cases by the ICC. The Kenyan cases are at the trial stage," Abdalla said.
He however said there is still a chance to challenge admissibility even after trial has commenced but only in exceptional circumstances approved by the trial chamber. "Only, if the conditions for it, as specified in Articles 17 and 19 of the Rome Statute, are fulfilled, cases can be declared inadmissible before the ICC and can proceed before other tribunals," he said.
Abdalla did not speak of deferral which is a postponement of proceedings for 12 months and usually done at the request of the UN Security Council. He said resolutions such as the one made by the East African Parliament have no effect in the ICC.
Only filings that are submitted to the ICC in accordance with the procedural rules of the court can be decided on by the Judges. He said so far no communication has been received at the court in that regard.
"I am sorry I cannot answer your question in more detail, since some of those issues might be brought to the chamber and it will be for the judges to give the answers," Abdalla said.
In March, a panel appointed by the government to advise on the ICC warned that any further admissibility challenge to "recover" jurisdiction of the four accused is unlikely to be granted.
The panel said for this to happen Kenya would have to show evidence of genuine ability and willingness by all parts of the justice system to try the matter. The panel did not mention the Arusha proposal.
The panel recommended the appointment of an independent special prosecutor as the basis of another admissibility challenge. "In view of where the ICC process in respect of the four accused has reached, a national process that is sufficiently advanced as against the four accused would have to be demonstrated," said the report handed to the AG Githu Muigai.
Last year, Kenya made an admissibility challenge at the ICC against the cases but lost all the way up to appeal. The suspects also lodged both admissibility and jurisdictional appeals and lost. Some matters are still pending in the appeal chamber. Yesterday, several foreign ambassadors interviewed by the Star said the Arusha approach was not viable.
Arusha does not yet have jurisdiction and even then it would still take time to build the capacity of the court and obtain the necessary international legitimacy, said one diplomat.
Last month, an extraordinary summit of East African heads of state chaired by President Kibaki endorsed the EALA resolution to expand the jurisdiction of the Arusha court to cover crimes against humanity. Last week, the Star reported that Prime Minister Raila Odinga had met William Ruto on April 23 in an effort to woo him back to ODM.
However Raila later denounced the story as "cheap lies" through his spokesman Dennis Onyango. In particular he denied that anything was discussed about the ICC with Ruto.
"As all Kenyans know, ICC matters are handled at The Hague, in The Netherlands, and not in Atlanta or Tallahassee where the PM was visiting last week," said the statement.
It was denied that the meeting was set up by the PM's wife Ida saying she has not visited Ruto's home "in recent years.She however stands by her statement of sympathy with Hon Ruto and his family, which she issued after the confirmation of charges against the four suspects by the ICC as an expression of human fellow feeling, not a fight against the Court."
Recently Raila has taken a softer line on the ICC. On his arrival back from the USA last Thursday he told a press conference that he would not oppose President Kibaki's initiative on Arusha.
"Even if the PM might seek to get the ICC cases out of the political electoral equation, such a deferral request is allowed under ICC rules," said an ODM insider yesterday.