IJCentral: International Justice Central

In President Kibaki’s folders lies a secret letter from International Criminal Court’s Chief Prosecutor Luis Moreno-Ocampo nudging him to formally invite ICC to investigate and try kingpins of post-election violence.

A copy of the letter is also with Prime minister Raila Odinga who, in the spirit of his shared executive authority with Kibaki in line with last year’s power-sharing deal, is expected to sit with the President, listen to Moreno-Ocampo, and make the hard decisions that may not spare even their confidants. Moreno-Ocampo will also be asking Kibaki and Raila if the Government will arrest suspects should ICC judges issue arrest warrants or summons for them to appear before them.

Moreno-Ocampo, in his letter of response to President Kibaki’s and Raila’s request to him for a ‘draft agenda’ ahead of their meeting this week, also gives the two leaders the option of letting Kenya host the ICC proceedings against its citizens.

In the letter, which The Standard has seen, Moreno-Ocampo says he will be asking the two leaders to choose “if they find helpful”, to sign an agreement with ICC that will allow those found guilty to serve their sentences in Kenya’s prisons.

Fuel animosity

In legal parlance, Kenya is being invited to negotiate “enforcement of sentence agreement” with the President of ICC Justice Sang-Hyun Song. “This could be done in the form of a tripartite agreement involving third party States willing to fund such an agreement,” Moreno-Ocampo told the President and Raila.

Kenya’s initial reaction to the prospect of trials and serving of jail terms on her soil was that it would fuel animosity. In his carefully-worded letter Moreno-Ocampo, probably because of the resistance Kenyan leaders put up against the establishment of a special tribunal, puts the burden of referral on Kibaki’s shoulders.

“A referral does not require parliamentary approval, it is a decision taken by the Executive,’’ he told Kibaki in the letter sent through Justice Minister Mutula Kilonzo.

In a nutshell, the ICC Chief Prosecutor told President Kibaki to take the formal but groundbreaking step that would allow it to take up investigation and prosecution of high-profile suspects, six of whom are believed to be Cabinet ministers.

Moreno-Ocampo goes ahead to tell the President that he will be explaining to him — in case he does not take action, “how I can use my powers to request Pre-Trial Chamber to initiate an investigation of the alleged crimes committed in the context of post-election violence in Kenya.”

It was copied to Head of Civil Service Mr Francis Muthaura, in his capacity as Secretary to the Cabinet, and Mr Miguna Miguna who is the PM’s advisor on Coalition Affairs.

Moreno-Ocampo not only sets out the agenda for his meeting with Kibaki and Raila on Friday but also explains his letter dated October 27 was aimed at submitting information which will “facilitate fruitful conversation” when they finally meet face to face.

The ICC prosecutor has vowed to make Kenya “an example to the world in fighting impunity”. On Sunday, Mutula said, the issue of referring the case to ICC may feature at the meeting with the principals. “Those issues may or may not feature at the meeting and as such they are out of my province,” he explained.

Lawyers argue it now depends on how the Government will treat the situation and whether the suspects including the high and mighty may be handed over to ICC.

Senior Counsel Paul Muite said, “If the Government refuses to refer the case, the Pre-Trial chamber will grant permission to Moreno-Ocampo and there is no escape route.”

Muite explained Kenya risked being listed a pariah State should it fail to comply, despite an earlier commitment.

According to Article 15 of the Rome Statute, the Prosecutor of the ICC may initiate an investigation on the basis of information on crimes within the jurisdiction of the Court.

Worst violence

Lands Minister James Orengo, speaking in Siaya, said, pressure must be piled on Kenya to ensure justice is done to the victims of post-election violence suspects.

Moreno-Ocampo has proposed a three-pronged approach in a bid to try and resolve Kenya’s worst violence since independence.

The ICC, he said was a Court of last resort and will prosecute those most responsible while the national accountability proceedings through the enactment of the Special Tribunal for Kenya to prosecute middle and low-level criminals connected to post-election violence.

reposted from The Standard