IJCentral: International Justice Central

The trip of the Member of Parliament for Eldoret North to the Hague has demonstrated an astonishing lack of knowledge about the highest criminal justice process in the world, as manifest in ongoing debate by citizens, politicians and even media coverage.

It is imperative that this lack of information be addressed urgently, not only by the International Criminal Court’s outreach office, but also by the government.

As for the media, the bosses should ensure that their journalists acquire at least the basic knowledge to follow this criminal justice process.

With respect to the criminal justice at the national level, all acts of commission and omission that are considered criminal are contained in the Penal Code and numerous pieces of legislation.

The ICC has the mandate to prosecute and try crimes that are enumerated in the Rome Statute—crimes against humanity, genocide and war crimes, as well as the crime of aggression.

The confusion in Kenya seems to arise from the fact that the ICC’s Prosecutor is focusing on the possible commission of crimes against humanity alone.

Despite what is already in the public domain about the extent, nature and patterns of the 2007/8 violence, the perception persists here that he should be focusing on genocide. This perception must be addressed.

Back to the national level. Once an act believed to be a crime is committed, it is the obligation of the Criminal Investigations Department to investigate that act and compile evidence supporting its assertion any alleged perpetrator it identifies did indeed commit that act.

It is then the obligation of the CID, through the Director of Public Prosecutions, to ensure the case is tried.

At the international level, the ICC’s Office of the Prosecutor has the responsibility for both investigations — in cooperation with national authorities. The OTP can ask the ICC judges for authority to investigate but it has to build its own case.

The confusion in Kenya here seems to be about the perception that the OTP’s investigation is relying, in particular, on the reports of the Kenya National Commission on Human Rights and the Commission of Inquiry into the Post Elections Violence.

The CID and the DPP need to convince the bench that their evidence and witnesses justify a person’s being charged with and, eventually, found guilty of a crime. Similarly, at the international level, the OTP needs to convince the judges of the same.

The ICC is, as its name implies, a court. And that is also the confusion in Kenya. Perhaps because the flow from CID to the DPP to the bench has not evidenced itself as being smooth and uninterrupted—based on strict considerations of law—the assumption seems to be that the ICC is not based on strict consideration of law either. We should disabuse ourselves of that fallacy. It is a court.

In short, our lack of information about the ICC is making us vulnerable to spin. And our politicians are notoriously un-short of spin.

The MP of Eldoret North may have presented himself to the OTP to give a statement of his own volition as to his knowledge of what happened in 2007/8. This however, does nothing to change the strictly legal process that the OTP is engaged in.

Let’s have some sobriety, please. And let’s have an attempt to discuss and debate the ICC’s engagement in Kenya on an informed and rational basis.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission

source: The East African