IJCentral: International Justice Central

Nairobi, Kenya

After more than a year of investigations, the chief prosecutor of the world’s sole war-crimes tribunal has accused six prominent Kenyans of orchestrating the post-election violence that killed 1,200 people three years ago.

Luis Moreno-Ocampo said on Wednesday that he has evidence that all were involved in the perpetration of crimes against humanity, including murder and ethnic cleansing. He has brought two separate cases, with three defendants each.

If judges at the International Criminal Court (ICC) agree, the six men will be summoned to appear at The Hague, Netherlands – and issued arrest warrants if they fail to comply.

If the two cases come to trial, it will mark a first for Kenya. There has never yet been a single successful prosecution for senior Kenyan figures implicated in a series of alleged gross crimes of violence or corruption.

“Kenya is turning a page in its history, moving away from impunity and divisionism toward an era of accountability and equal opportunity,” said President Obama in a statement Wednesday.

“I believe that the Kenyan people have the courage and resolve to reject those who would drag the country back into the past and rob Kenyans of the singular opportunity that is before them to realize the country’s vast potential.”

Florence Wambugu, a woman selling grilled maize on a street corner in an upmarket Nairobi suburb, agreed with Mr Obama.

“This is something we know we cannot do ourselves, even if so many of want these people to go to court,” she said.

“In Kenya, they would buy their way to freedom. There, in Europe, we hear that you cannot do that. They must face their music, and others wanting to copy their evil deeds will be made to think twice.”

The six accused

Mr. Moreno-Ocampo, the ICC’s chief prosecutor, has drawn up two cases, with three accused in each.

The first involves William Ruto, the suspended higher education minister, Henry Kosgey, the industrialization minister, and Joshua Sang, a presenter on a local-language radio station.

All are accused of involvement in crimes against humanity including murder, ethnic cleansing, targeting supporters of rival political parties, and torture.

The second case involves Uhuru Kenyatta, the deputy prime minister and son of Kenya’s founding father; Francis Muthaura, head of the civil service and a close ally of President Mwai Kibaki; and Maj. Gen. Hussein Ali, the former chief of police.

That trio is linked to crimes against humanity, murder, ethnic cleansing, inhumane acts, and sexual violence. Most of the men swiftly denied any wrongdoing Wednesday.

“These were not just crimes against innocent Kenyans,” said Moreno-Ocampo, who is pursuing separate cases against Sudan’s president, Congolese warlords and Ugandan militia leaders.

“They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice.”

Kenyan president stands by those accused – so far

The ICC judges are expected to spend the next few weeks going through the 158 pages of evidence presented Wednesday by Moreno-Ocampo.

If they agree with him, the six men will be summoned to appear before the court, and arrest warrants will be issued if they fail to comply.

In what Mwalimu Mati, director of anti-graft watchdog Mars Kenya, called a “distressing sign,” President Kibaki has already stated that he will not ask those members of his government named in the list to step aside until charged.

“The people who have been mentioned have not yet been fully investigated as the pre-trial process in The Hague has only but began,” Mr. Kibaki said in a statement.

“They therefore cannot be judged as guilty until the charges are confirmed by the court. Calls for action to be taken against them are therefore prejudicial, preemptive and against the rules of natural justice.”

For Mr. Mati, this is not enough.

“These are people who will wake up tomorrow and go to work for the government, despite being accused of rape, murder and ethnic cleansing,” he said.

“Of course, they are innocent until proved guilty. But it does seem that the president is sending totally the wrong message by starting this whole thing by appearing to stand by them.”

But other Kenyans believe Ocampo has gone too far.

“Ocampo has thrown everybody off balance and this decision to charge these politicians does not reflect the mood of the people,” says Nairobi lawyer Ken Ogeto.

Some have worried about another outbreak of violence in the Rift Valley, home to three of the six accused – Mr. Ruto, Mr. Kosgey, and Mr. Sang.

But in the Rift Valley town of Eldoret, scene of much of the post-election violence in early 2008, Ken Wafula says that the area remains calm, and adds, “I have not, as a non-Kalenjin, received any threats as it was during the post-election violence.”

source: The Christian Science Monitor

LAMU, Kenya — The prosecutor of the International Criminal Court is seeking to indict several high-ranking Kenyan politicians, including the finance minister and a former national police chief, for crimes against humanity in what he calls an orchestrated campaign to displace, torture, persecute and kill civilians during Kenya’s election crisis in 2007 and early 2008.

These are the first serious charges sought against Kenya’s political elite for the violence, and are intended to address one of Africa’s glaring weak spots — disputed elections — which have led to turmoil in Zimbabwe, Ethiopia, Nigeria and, most recently, Ivory Coast.

“This is a different kind of case,” Luis Moreno-Ocampo, the court’s chief prosecutor, said of the accusations, which are scheduled to be announced Wednesday. “This isn’t about militias. It’s about politicians and political parties. It’s about investigating leadership.”

And, Mr. Moreno-Ocampo added, “this isn’t just about justice. For Kenya, this is survival.”

Among the top six politicians named are Uhuru Kenyatta, finance minister and son of Kenya’s founding leader, Jomo Kenyatta; Mohammed Hussein Ali, the former police chief, who stands accused of unleashing police officers to shoot unarmed demonstrators; and William Ruto, arguably Kenya’s most divisive political figure, widely accused of instigating violence but revered as a hero within his ethnic community, the Kalenjin. Some of the worst episodes of violence, including the burning of a church with dozens of women and children inside, occurred in predominantly Kalenjin areas.

The case follows an international effort to help pull Kenya back from the brink of chaos after the disputed election in December 2007 set off widespread protests and ethnically fueled fighting, which swept the country and killed more than 1,000 people.

“Finally, we have our day,” said Maina Kiai, a former Kenyan human rights official. “This is the first time we have high-ranking people facing the law where they have no control and they can’t bribe their way out of it.”

Mr. Kiai and many others say Kenya has had a dangerous habit of whitewashing sensitive investigations, often setting up high-level commissions but never punishing the culprits. This record of impunity has led to mass killings around previous elections as well, and many Kenyans fear that the next election, in 2012, could be worse if the ringleaders of 2007 go free. Others worry that prosecutions will inflame tensions instead.

The case brings the court into some uncharted territory. All of its previous cases have focused on militias and war zones, and this is the first time that Mr. Moreno-Ocampo has stepped in on his own initiative, without a request from the home country or by the United Nations Security Council.

Mr. Moreno-Ocampo has been criticized for solely prosecuting Africans and for being overzealous, particularly in his dogged pursuit of genocide charges against President Omar Hassan al-Bashir of Sudan. The effort to arrest Mr. Bashir has proved very difficult and alienated some African countries.

This time, Mr. Moreno-Ocampo plans to ask the judges at The Hague to issue a summons, not an arrest warrant. That would allow the accused to turn themselves in and spare Kenya, at least initially, the awkwardness of having to hand over its political elite. Mr. Moreno-Ocampo has also implicated leaders from both sides, the government and the opposition, a decision many Kenyan observers say could be crucial in influencing what happens next — peace or more bloodshed.

“If the I.C.C. is seen as having done a balanced job,” said John Githongo, a former anticorruption official who was forced into exile and recently returned to Kenya, “then it will be more difficult for the elite to mobilize people violently against it.”

But, Mr. Githongo added, “Kenya is now a volatile country. The politics are bubbling. A lot of change is happening at the same time. Anything is possible.”

In recent days, Kenyan police commanders have put their forces on high alert in anticipation of Mr. Moreno-Ocampo’s announcement. But officers were given explicit orders to use restraint, especially with live bullets. Many Kenyans expect Mr. Ruto’s supporters in the turbulent Rift Valley to be the most upset.

The case is expected to face legal hurdles as well. The prosecutor is seeking to charge all six men with crimes against humanity. But several international-law experts and a judge at the court have questioned whether the violence of 2007, while serious, fits that definition.

“The question is not whether the crimes have happened,” wrote Judge Hans-Peter Kaul, one of three judges who reviewed the prosecutor’s investigation. “The issue is whether the I.C.C. is the right forum before which to investigate and prosecute these crimes.”

It was not, Judge Kaul concluded. The two other judges disagreed, allowing the investigation to proceed. But experts said the question of the court’s jurisdiction would linger.

After the disputed election, Kenya’s leaders vowed to pass a new constitution; set up a local tribunal to prosecute the election killings; and undertake land reform, police reform and a number of other ambitious reforms whose urgency was exposed by the election turmoil.

Kenya’s political class accomplished some of these tasks, including the peaceful passage of a new constitution in August that devolves power and establishes a bill of rights. But efforts to set up a local tribunal were typically blocked by the very politicians who were implicated. Now some Kenyan politicians, including several of those named in the charges, are trying to resuscitate the idea.

According to Mr. Moreno-Ocampo, the evidence predates the disputed election in December 2007, in which Kenya’s incumbent president, Mwai Kibaki, was declared the winner, despite mounting evidence that the real winner was Raila Odinga, an opposition politician who is now prime minister.

Mr. Moreno-Ocampo says Mr. Ruto (who used to be a minister but was suspended recently because of corruption accusations); Henry Kosgey, the minister of industrialization; and Joshua arap Sang, a radio broadcaster — all well-known opposition figures — began planning a year before the election to attack supporters of the governing party. After Mr. Kibaki was declared the winner, prosecutors say, the network they cultivated burned homes, killed civilians who had supported Mr. Kibaki and systematically drove people off their land.

In response, prosecutors say, Mr. Kenyatta, Mr. Ali and Francis Muthaura, the head of the civil service, “developed and executed a plan” for “suppressing and crushing” opposition protests and keeping the governing party in power.

The police were sent to opposition strongholds “where they used excessive force against civilian protesters,” and Mr. Kenyatta and Mr. Muthaura deputized one of Kenya’s most brutal street gangs, the Mungiki, to “organize retaliatory attacks against civilian” opposition supporters, the prosecutor contends.

But many observers say evidence from the earliest days of the crisis implied that some of the killings were spontaneous expressions of rage, not centrally organized, and that the organized violence was planned at local levels, by chiefs and elders, not necessarily by top politicians.

The suspects have denied any wrongdoing. Mr. Ruto has called the evidence “cooked up.” He has said that witnesses have been bribed and that the case “will in the end amount to fraud.”

Mr. Kenyatta said in October that he was “not concerned personally by the I.C.C. warrants” and that “once due process has taken place, the truth eventually will come through.”

Neither of the two political protagonists whose rivalry set off the violence, the president and the prime minister, are implicated in the case. Many experts believe this is one reason that Kenya will ultimately cooperate.

“The Kenyan government is not Zimbabwe,” said Mr. Kiai, the former human rights official, referring to Zimbabwe’s antagonistic relations with the United Nations and the West. “International acceptance is important to Kenya.”

Jeffrey Gettleman reported from Lamu, and Marlise Simons from Paris.

source: The New York Times

Mr Luis Moreno-Ocampo, the International Criminal Court prosecutor, will ask judges to be allowed to present his case in open court, meaning that chaos suspects and the case against them could be unmasked before year-end.

Mr Moreno-Ocampo is expected to go before judges on December 15 to ask them to indict prominent personalities for their alleged role in the post - poll violence.

Before that, a meeting of ICC member countries ICC is to be held in Nairobi next week as The Hague’s investigations draw to a close.

Another high-profile meeting led by chief mediator Kofi Annan will be held in the city as well, as the ICC begins the process of deciding whether to try post-election violence suspects.

He had wanted to present the case in private to avoid hurting the individuals whom he wanted indicted.

However, given the circumstances surrounding witnesses and leakage of a confidential letter from the ICC, it is understood he will go for open submissions so that individuals accused of involvement are known.

This, said sources familiar with ICC work, was to ensure the public and civil society put pressure on the government to hand over the suspects once the arrest warrants are issued.

Mr Moreno-Ocampo secured the court’s decision to start investigations in the Kenya case after Parliament failed to vote for setting up of a local tribunal to try the suspects.

He has said he would present two cases against “four to six” suspects. Though his office has not confirmed the dates, most court watchers believe it will be in mid-December.

The State Parties grouping is the ICC’s top decision making organ and brings together all the 114 nations which have signed the Rome treaty.

Its meeting next Wednesday will discuss ICC’s role and the need for countries that have ratified it to cooperate. A day after, the Panel of Eminent African Personalities chaired by Mr Annan, a former UN secretary-general, will sit for two days assessing the coalition government’s record nearly three years after it was formed to end the blood-letting that followed the disputed December 2007 presidential election results.

Last year, the ICC was represented at the first assessment meeting in Geneva, Switzerland by Ms Beatrice Le Fraper du Hellen, then head of the Jurisdiction, Complementarity and Cooperation Division.

Sources said one of the issues that will be handled by both meetings would the progress in the investigations of the politicians, civil servants and businesspeople suspected of planning and financing the chaos and the need to have them take responsibility for their roles.

Last week, via a video recording, Mr Moreno-Ocampo said he was tying up two cases of suspects who will be drawn from both the Party of National Unity (PNU) and the Orange Democratic Movement (ODM). The prosecution of the cases, he said, will ensure that poll-related violence will not occur again in future.

“We’ll prove that some leaders from both parties, both sides, were abusing the loyalty of their communities to attack others,” he said.

In the video shot on Monday and played to journalists attending a two week course on covering the ICC yesterday, Mr Moreno-Ocampo said he has a case against six individuals, two of whom are said to be senior civil servants, considered as the most responsible individuals from both sides of the coalition government for the post-election violence.

“For the last months we were collecting evidence to present the case before the judges who will review our application and decide,” he said.

“The crimes committed were serious,” the prosecutor said. “They were not just crimes against one community or Kenya; but crimes against humanity and justice has to be done.”

Before coming to demonstrate to the government and the public the international expectations that the suspects must be punished, the ICC team will head to New York this week to meet UN officials and to explain the next steps they will take regarding the Kenyan case, sources said.

The ICC and Mr Annan have voiced concern at the way the investigations have been handled especially intimidation and witness bribery claims.

source: Daily Nation

As the International Criminal Court investigation into the 2008 post-election violence continues, Kenyan law increasingly is being used by opposition to block the court’s work.

Despite receiving the support of the Kenyan President and Prime Minister, ICC Prosecutor Luis Moreno-Ocampo has faced a series of high-level hurdles over the past month in his efforts to bring the organizers of the 2008 poll chaos to The Hague.

The latest in this series of frustrations is his request for documents detailing top-level security meetings during the violence.  According to the Daily Nation newspaper, the government is considering withholding the minutes of Security Council meeting held before and during the crisis.

Moreno-Ocampo began his investigation into the poll chaos after nearly two years of inaction in Kenya.  The secretary of the Law Society of Kenya, Apollo Mboya, said the obstacles facing the prosecutors only validate the need for an international mechanism for justice.  Mboya said the opposition facing Moreno-Ocampo is not surprising.

“This is what we expected.  The behavior is predictable.  We expected it to go that way. But we think that the evidence that is there, even without the other crucial evidence that is required by the International Criminal Court is enough to bring people to account for the crimes they did,” said Mboya.

Mboya said the government was first required to prove to the ICC that the minutes requested by the prosecutor would harm national security if released.  In that event, Mboya said agreements could be reached to keep the documents secret while still making them available for the investigation.

The prosecutor’s team has met with similar resistance from Kenya’s police.  Trying to establish a police response to the election chaos, Moreno-Ocampo’s team has requested statements from Provincial Police Commissioners and Officers.  Kenya’s Attorney General issued a directive for those summoned to comply with the ICC request.  But the officers and commissioners have refused, arguing the request violates Kenyan law.

It is believed the summoned police are trying to avoid becoming scapegoats for the violence, and Mboya said the refusal indicates opposition to the investigation within higher levels of the government.

“I think it is a question of them feeling that they are more of a sacrificial lamb,” said Mboya.  “That is why they are doing that.  Provincial administration is answerable to the office of the president.  So even as the attorney general gives the clearance, the main people who must actually give that authority for them to talk is the office of the president.  The attorney general giving the clearance is just a whitewash that ‘I have done this’ but we know that these people - they do not report to the attorney general.  They report to the office of the president through the ministry of internal security.”

Moreno-Ocampo is investigating alleged crimes against humanity that took place in the wake of Kenya’s December 2007 presidential elections. Then-rivals President Mwai Kibaki and Prime Minister Raila Odinga accused one another of vote rigging, which set off ethnic violence countrywide.  More than 1,000 people were killed and 300,000 displaced in the two months that followed.

Moreno-Ocampo says his investigation is focused on those who plotted and executed the violence.  The prosecutor plans to bring two cases against three suspects each when he presents his evidence to The Hague in December.

source: Voice of America

SA leads the way in standing up against war criminals

UNTIL the last 15 years of the 20th century, international criminal justice did not exist. Since the establishment by the United Nations (UN) of the International Criminal Tribunal for the former Yugoslavia in 1993, the growth and development of international justice for war criminals has grown at a dramatic pace.

The successes of the Yugoslavia tribunal and the Rwanda tribunal that followed in 1994 were sufficient to spur many nations to move towards the establishment of a permanent International Criminal Court (ICC). They also spawned the so-called mixed or hybrid tribunals for East Timor, Sierra Leone, Cambodia and Lebanon.

These criminal courts demonstrated that international criminal justice can work efficiently, that fair trials in international courts are possible and that their work advances the development of the law. The most important development has been the prosecution of gender-related crimes and especially systematic mass rape.

The Rome Treaty of 1998 established the ICC. It required the ratification of 60 states to bring its provisions into operation. Even its most optimistic supporters did not anticipate that it would take less than four years for that to happen. SA has been one of the ICC’s most active supporters and helped gain important support from other governments in our region. The ICC became operational on July 1 2002. Today, there are 113 nations that have joined the ICC by ratifying the Rome Treaty. The African region leads, with 31 ratifications, followed by every member of the European region.

This wide support for the ICC was accompanied by the unexpected reference of its first investigations by three African governments — Uganda, the Democratic Republic of Congo and the Central African Republic. The court did not seek those referrals — those governments sought the intervention of the court. The fourth situation — that of Sudan and the crimes committed in Darfur — was referred by the UN Security Council itself. Only the fifth, Kenya, has come about as a result of the p rosecutor’s initiative.

This last situation arises from the violence that accompanied the 2007 elections in Kenya and followed a recommendation from former UN Secretary-General Kofi Annan and a Kenyan commission of inquiry.

The ICC became involved only after Kenya’s parliament decided not to set up its own domestic investigation.

It thus becomes apparent that the allegation that the ICC is in some way biased against African states or was set up to deal only with Africa is unfair and without substance. In addition, the prosecutor has made clear he is investigating other situations in Latin America and the Middle East.

The ICC operates on a system of “complementarity”. This means that the court has no jurisdiction at all in any case if the government of the nationality of the suspect is willing and able to investigate and, if there is sufficient evidence, to prosecute that person. Such a domestic investigation undertaken in good faith is conclusive regardless of the outcome and will deprive the ICC of any jurisdiction in the matter. The ICC is thus a court of last and not first resort. Modern international criminal law recognises that it is more appropriate for war criminals to be investigated and prosecuted by domestic rather than by international mechanisms.

The courts of Sudan are clearly not willing or able to investigate Sudanese leaders who have credibly been found by the ICC to be answerable for the most serious crimes, including genocide. The ICC has issued arrest warrants for a number of Sudanese leaders, including President Omar al-Bashir. The governments of nations that have ratified the Rome Treaty are legally obliged to arrest those people, To its credit, the South African government warned al-Bashir that should he visit SA, he stands to be arrested and handed over to the ICC. That is an obligation SA undertook when it ratified the Rome Treaty. It is also its obligation pursuant to the terms of a binding and peremptory resolution of the UN Security Council when it referred the Darfur situation to the ICC.

It is a matter of deep regret that Kenya failed to live up to those same obligations when al-Bashir recently visited Nairobi. Kenya has been roundly criticised for failing to uphold its international obligations. The only body that is able to sanction Kenya for flouting its international obligations is the s ecurity c ouncil. The law is clear and what is necessary is the political will to do something about it. The s ecurity c ouncil has the power and the right to impose appropriate sanctions against Kenya. If the s ecurity c ouncil fails to take such action, its own credibility will be called into question. It would be recognising the ability of member states of the UN to flout binding resolutions of the council.

Even in the absence of appropriate action by the s ecurity c ouncil, Kenya has made itself an international outlaw and has diminished its standing in the international community. Countries that do not uphold and implement their international obligations, seriously assumed, will undoubtedly suffer other prejudicial consequences, especially in the sphere of international trade and commerce. The adherence by nations to their international obligations is an important benchmark for major nations entering into trade and other relationships.

It was because of the system of complementarity that recognises the right of nations to investigate allegations against their own citizens that the UN and the European Union called upon Israel, the Palestinian Authority and Hamas to investigate the serious findings contained in the fact-finding mission on Gaza that I headed last year. Secretary-General Ban Ki-moon also called on the parties to hold independent domestic investigations into the conduct and consequences of the Gaza conflict.

In March, the UN Human Rights Council decided to establish a panel of independent experts to monitor the independence, effectiveness and genuineness of the investigations and their conformity with international standards. That panel is being led by one of Europe’s leading international lawyers, Prof Christian Tomuschat.

To date, Hamas has launched no investigations at all. The Palestinian Authority, for its part, did establish an independent domestic investigation and its findings were recently handed to the s ecretary-g eneral. The Israeli military conducted its own investigations behind closed doors. Those inquiries have confirmed some of the most serious incidents detailed in the Gaza report. Judgment on the extent to which the parties have carried out their international obligations in this regard must await the report of the Tomuschat panel. That report is soon to be presented to the Human Rights Council.

From the foregoing, it should be apparent that international criminal justice has developed at an impressive pace in recent years. At its core is the protection of civilians during times of war. Too many millions of innocent children, women and men have died in the wars that plague our planet. For too long there has been effective immunity for the war criminals responsible. That immunity is steadily being withdrawn as many nations join the ICC. South Africans should take pride in our government having been one of the leaders in this movement.

- A former judge of the Constitutional Court, Goldstone will be giving a public lecture reflecting on International Accountability for War Crimes on September 27 at the University of Johannesburg.

source: Business Day

A Cabinet Minister has launched a controversial campaign to stop the International Criminal Court from investigating and prosecuting post-election violence suspects.

Lawyer Mutula Kilonzo, who holds the Justice portfolio, claims that trial sought by the ICC chief prosecutor Moreno-Ocampo after he completes investigations in the next few weeks will be unnecessary when Kenya establishes a new judiciary, appoints an inspector-general of police, and installs a new director of public prosecution under the new Constitution.

The minister, whose docket is crucial to obtaining justice for the victims of the violence that broke out after the 2007 General Election, argued: “When these (appointments) are in place, we can say that Kenyan judges meet the best international standards. After that, I can even tell them not to admit the ICC case. Why on earth should a Kenyan go to The Hague?”

But the Minister’s proposal, raised in an interview with the Sunday Nation, drew immediate opposition from the Law Society of Kenya and Government Chief Whip Jakoyo Midiwo.

Law Society chairman Kenneth Akide also disagreed with Mr Kilonzo, saying the new Constitution requires that Kenya respect agreements it had signed, including the Rome Statute that created the ICC.

“The ICC has not been replaced because of the new Constitution,” Mr Akide told the Sunday Nation by phone from China.

He said the judiciary and police were yet to be transformed to effectively deal with post-election violence suspects. He added that, contrary to Mr Kilonzo’s assertion, the judiciary “has always existed, but the country sought ICC intervention because of lack of political will to prosecute the suspects.”

In an exclusive interview, Mr Kilonzo said the administrators of the Hague-based court should know that Kenya now has a “new prosecutorial system and a new police under a new Constitution.

“I’m totally convinced. One million per cent convinced. The case before the ICC has not yet been admitted. It can only be admitted after (ICC chief prosecutor Luis Moreno) Ocampo finishes his investigation.

“I advocate a local tribunal partly because I’m a Kenyan, and I cannot entertain the idea of a foreign court having to investigate a fellow citizen on offences committed against fellow citizens,” Mr Kilonzo said.

“Under Articles 2, 4, and 5 of the new Constitution, we can now tell the world:  If we appoint a new director of public prosecution, a new broom will sweep clean,” he said.

He said the Bill on vetting sitting judges and recruiting new ones, which would also look at “their temperament, their history and everything else”, was in place.

Mr Kilonzo, who has been at the forefront of pushing for the prosecution of post-election violence suspects, said the panel conducting the vetting of judges could have access to advice from intelligence services, the police, the office of the Attorney-General, and the Advocates Complaints Commission.

An ICC delegation is expected in the country next week. Mr Kilonzo’s comments come at a time when a more robust ICC process is at play as Mr Moreno-Ocampo appears keen to complete his investigations of key post-election violence suspects by the end of the year.

He is expected in the country in the next few weeks to bolster the ICC investigations. The ICC process was for some time overshadowed by the August 4 referendum, but it is now in high gear after the signing two weeks ago of an agreement to allow the court to set up an office in Kenya.

A section of the Cabinet is unenthusiastic about the ICC, while other ministers are pushing for charges against perpetrators of the violence that left 1,133 people dead.

The ICC’s actions could dramatically affect the country’s political scene as some of those mentioned in connection with the violence harbour plans to run in the 2012 General Election.

Mr Kilonzo said potential witnesses have been given protection in several places, but any trials could be carried out locally.

“My challenge to Kenya is this: You gave yourselves a beautiful gift on August 27. Give yourselves another one by telling the world through the institutions that we created to keep off,” Mr Kilonzo said.

The minister said he was personally unhappy with the way the country had dealt with the thousands of Internally Displaced Persons and that he would have liked a special division of the High Court to deal with the matter.

“Ocampo and ICC cannot solve that. It’s a Kenyan issue,” he said.

Mr Kilonzo has twice presented a Bill to the Cabinet to establish a special tribunal to deal with post-election violence cases, but it was not approved.

Another effort to establish a local tribunal in Parliament was similarly defeated, opening the way for the International Criminal Court to step in.

Having served on the National Dialogue and Reconciliation Commission, popularly known as the Serena Team, Mr Kilonzo also expressed concern that some politicians had rushed to announce their interest in senate seats and governorships “without realising that a huge number of Kenyans are living in deplorable conditions”.

Mr Midiwo said victims of post-election violence want resettlement and justice.

“The ICC was not coming here to force us to do a new Constitution. It came because the government failed its people. What am I supposed to tell my people whose relatives were killed,’’ he said.

Mr Kilonzo’s comments are likely to rub civil society the wrong way as well as other proponents of the ICC who wanted it to speedily deal with the Kenyan case.

Kenya National Commission on Human Rights chairperson Florence Jaoko-Simbiri said the country still needs the ICC, the new Constitution notwithstanding, as Kenya is a signatory to the Rome Statute.

“The country has not only domesticated the Rome Statute; the government has also made commitments to the ICC. I don’t see how the new Constitution prevents the ICC from coming,” she said.“Judicial reforms will take a while before being enacted. It will also take time before changes in police take place to facilitate credible investigations,” Simbiri said.

Nairobi lawyer John Mureithi Waiganjo said the government was mandated to cooperate with the ICC.

“The ICC has to continue with investigations and prosecute the culprits. It is wrong for the minister in charge of Constitutional Affairs and Justice to relate the new Constitution to the post-election violence. It was criminal and an offence against humanity,” he said.

In February last year, Parliament shot down a government Bill to set up a local tribunal to investigate the violence. The Bill sought to entrench the tribunal in the Constitution but was supported by only 101 MPs, far short of the 145 required to amend the law.

In opposing the Bill, MPs cited a lack of confidence in the judiciary and the potential danger that a local tribunal could spark ethnic tensions.

source: The Daily Nation

A top team of International Criminal Court officials on Wednesday met with government leaders to explore the possibility of the court setting up base in Kenya.

Among the issues discussed was according ICC judges, prosecutors and other members of staff diplomatic status.

The Rome Statute, which established the court, provides for such status to allow the court to operate efficiently.

It is expected a decision will be made by Friday

A statement by International Criminal Court registrar Silvana Arbia after the meeting read: “I met with the Cabinet committee chaired by minister (George) Saitoti to discuss the operational and legal framework that is essential for the court to conduct its work in Kenya.”

The registry is one of the four organs of the ICC and it is responsible for the non-judicial aspects of administering and servicing the court.

It is a neutral organ of the court and provides support to victims, witnesses and the defence, where necessary.

Other organs are the presidency, the court’s divisions and the office of the prosecutor.

Ms Arbia is on a four-day visit as the court prepares to deal with Kenya’s post-election violence.

Prof Saitoti, who chairs the Cabinet committee on ICC affairs, briefed the media in the absence of Ms Arbia at Harambee House.

Said the minister: “We held fruitful discussions with Ms Arbia, the ICC registrar and her team and reviewed progress made in facilitating the ICC to carry out its mandate.”

Prof Saitoti said the government had handed over all documents that had been requested by the ICC and provided security to the investigators.

Cabinet colleagues James Orengo (Lands), Otieno Kajwang’ (Immigration) and Amason Jeffa Kingi (Fisheries), who are also members of the sub-committee, attended the meeting.

Mr Orengo said Ms Arbia was pleased with the support from the government, adding the Kenya would comply with its obligations to The Hague.

“Kenya is dealing with matters relating to the ICC and we will comply. The registrar is very happy about it.”

Sources said Ms Arbia was laying ground for the final push on the investigations scheduled to be concluded in December.

source: The Daily Nation

President Omar Hassan al-Bashir of Sudan arrived in Kenya on Friday to participate in a ceremony inaugurating the country’s newly minted constitution, flouting international demands for his arrest on genocide charges.

Mr. Bashir faces two arrest warrants: one issued in July by the International Criminal Court in The Hague on three counts of genocide and one from March 2009 for war crimes and crime against humanity. In theory the warrants could be enforced by any of the court’s member countries, which include Kenya.

The charges relate to the conflict in the western Darfur region of Sudan, where an estimated 300,000 people have died and more than two million have been uprooted by almost a decade of fighting between the government and rebels. Mr. Bashir denies the charges.

News reports said Mr. Bashir was escorted into Uhuru Park in the Kenyan capital, Nairobi, by the minister of tourism, Najib Balala, to attend the ceremony marking the adoption of the new constitution, supposed to hasten democratic reform in Kenya, a nation generally depicted as pro-Western.

The role of the international court is particularly sensitive in Kenya because last April its judges authorized formal criminal investigations of the political leaders who organized the violence that convulsed the country after its disputed election in 2007.

Kenya’s political leaders had earlier refused to set up a special tribunal to prosecute those responsible for the killings, saying Kenya’s existing courts could handle the cases.

Under the Rome Statute establishing the court in 2002, which Kenya has ratified, member states are supposed to cooperate with the court, which has no means of enforcing its warrants. Nonetheless, Mr. Bashir traveled last month to Chad — also a member state of the international court — without being arrested.

The African Union, the continent’s main representative group, has criticized the warrant and urged that it be suspended.

The readiness of President Mwai Kibaki to receive Mr. Bashir drew strong criticism from Human Rights Watch, a rights advocacy group based in New York.

“Kenya will forever tarnish the celebration of its long-awaited constitution if it welcomes an international fugitive to the festivities,” said Elise Keppler, senior counsel in the International Justice Program at Human Rights Watch in a statement on Thursday. “Even worse, hosting al-Bashir would throw into question Kenya’s commitment to cooperate with the I.C.C. in its Kenyan investigation.”

“Whether Kenya allows a suspected war criminal into Kenya is a test of the government’s commitment to a new chapter in ensuring justice for atrocities,” Ms. Keppler said. “The Kenyan government should stand with victims, not those accused of horrible crimes, by barring al-Bashir from Kenya or arresting him.”

The international warrants for his arrest have largely restricted Mr. Bashir’s travels to friendly countries in Africa and the Middle East that have resisted Western pressure to do the court’s bidding.

The celebration of Kenya’s new constitution, written to alleviate longstanding problems hindering good government for years, came after voters approved the document with overwhelming enthusiasm in a referendum earlier this month. It has been billed a potential turning point Kenya’s postcolonial history, addressing issues that have haunted the country since independence from Britain in 1963.

The constitution was drawn up after disputed elections in 2007 led to ethnically driven clashes that killed more than 1,000 people.

source: New York Times

NAIROBI, Kenya — A public feud between Kenya’s prime minister and president, whose agreement two years ago to share power ended the country’s worst violence since independence, has many of their compatriots worried that the bloodshed could resume if efforts by the U.S. and African powers fail to cool tensions.

Relations between the two leaders — never strong to begin with — broke down this week over the attempted dismissals of two Cabinet ministers accused of corruption. In the streets of Kenya’s capital, dozens of protesters marched in front of Parliament on Wednesday, demanding an end to corruption and expressing worry about the friction between President Mwai Kibaki and Prime Minister Raila Odinga.

“It’s definitely going to lead to violence because they are not working toward consensus,” Polycarp Gordon Odhiambo, 37, the chief executive of a development group that works in a Nairobi slum, said as he walked among other protesters who held up signs saying “Kibaki Stop Protecting Thieves” and “The Issue is Corruption, Not Politics.”

“From now on, anything can happen,” added Laban Kanyanya Nyongesa, 29, a taxi driver who watched the rally from the edge of a park.

U.S. officials are working behind the scenes to get the two leaders to talk face-to-face and bring down tensions that could rupture the coalition.

The two leaders spoke over the phone late Wednesday during an “extremely cordial” conversation, Salim Lone, an adviser to Odinga said Thursday. The two plan to meet on Sunday, he said.
Tensions escalated last Saturday when Kibaki suspended eight government workers — including two Odinga aides — suspected of corruption. The next day, Odinga suspended two Cabinet ministers after audits of their ministries of agriculture and education uncovered high-level corruption. But Kibaki annulled those suspensions and has since said they were never valid because Odinga had not consulted with him as required under Kenya’s power-sharing deal.

Moses Kuria, spokesman of Kibaki’s Party of National Unity, said that if Odinga or ministers loyal to him withdraw from the government, the president can simply reconstitute the Cabinet.

Legal scholars say such a move by Kibaki would be lawful. But it would risk sending angry Odinga supporters into the streets.

Fears of a return to violence are well founded, especially if the political stalemate goes on for many days, said Ben Sihanya, the dean of the University of Nairobi Law School. But, he said,
Kenyans are also aware that they are under more scrutiny today — by the International Criminal Court and others — after the December 2007-February 2008 bloodshed.

“You cannot just start killing people,” Sihanya said. “You cannot start burning things. People are being more careful than they were before.”

After the December 2007 vote, Kibaki was quickly sworn in as president despite doubts from observers about the vote’s fairness. Odinga supporters took to the streets and clashed with police. The violence took on an ethnic dimension as people were attacked with machetes and even bows and arrows based on their tribal identities. Whole neighborhoods were set ablaze.
Former U.N. chief Kofi Annan, a heavyweight negotiator acceptable to both sides, patched together the shaky coalition government to end the violence. Odinga has asked Annan to step in and mediate the current standoff. In a statement Thursday, Annan called on the two leaders to recommit to a collaborative spirit, to meet with each other and to fight corruption.
Top U.S. officials here are monitoring the dispute closely, are working to defuse the tension and also want the two leaders to meet.

Gus Selassie, a political analyst on Africa at IHS Global Insight, a London-based think tank, said that while Odinga may have exceeded his constitutional powers in trying to suspend the two ministers, Kibaki’s reversal of the decision underscores the disconnect between Kenya’s two leaders.

Selassie said that while Kibaki was first elected president in December 2002 on an anti-corruption platform, he is now reluctant to act against senior figures implicated in scandals.

A PricewaterhouseCoopers audit made public last week shows Kenya lost $26.1 million through corrupt deals that stemmed from a government program to provide subsidized maize for Kenya’s poor. Government auditors uncovered fraud in a program to offer free primary education — two scandals that led Odinga to try to dismiss the Cabinet ministers.

Average Kenyans still want their government to fight graft, but now they especially want their leaders to work together and prevent violence from erupting again.

“We expect this to be resolved,” said Sihanya. “Otherwise the alternative is quite dire for the country.”

source:  The Associated Press

The US has imposed a travel ban on a senior Kenyan government official for obstructing efforts to rid the country of corruption.

Johnnie Carson, the US state department Africa chief, said he was considering bans on three other officials - but declined to release any names.

Kenya agreed to carry through reforms after 1,300 people died in post-election violence last year.

But the US believes some officials have deliberately been blocking the reforms.

The BBC’s Will Ross, in Nairobi, says the US has to perform a balancing act when it comes to dealing with Kenya.

On the one hand Washington wants to exert pressure and help sideline some of Kenya’s more unsavoury politicians.

But the country is a vital ally in the region which the US relies on to help to dowse the flames of Islamist militancy in neighbouring Somalia, our correspondent says.

Sealed envelope

Mr Carson told reporters in Nairobi: “The US government has taken the decision to revoke the visa of a senior Kenyan government official.”

Without revealing names, he described the politician as a “senior government official of influence”.

He said the individual had “obstructed the reform process, failed to end the cycle of impunity and has been an obstacle in the fight against corruption”.

Last month Mr Carson sent a letter to 15 officials warning them they faced travel bans if they failed to support the “reform agenda”.

He urged Kenya to strengthen its institutions and eradicate corruption to avoid more violence after the next election in 2012.

A power-sharing government was eventually set up after weeks of violence following the December 2007 election, but it has struggled to restore stability.

Rights groups blamed the police for many of the deaths in the riots.

International mediators have pressed the government to set up a tribunal to investigate the killings, but officials continue to miss every deadline they are set.

In July, former UN chief Kofi Annan passed the names of those accused of orchestrating the violence to the International Criminal Court in a sealed envelope.

The list, drawn up by a Kenyan judicial commission, has not been made public.

from BBC News

The government on Monday admitted that it would not keep the promise it made to the International Criminal Court to set up a local tribunal by September 30.

Instead, it will write to the ICC asking for more time to pass the law which will set up the tribunal.

This is the third time the government is failing to honour deadlines in bringing to justice those who masterminded the violence that erupted after the 2007 presidential election.

‘We have failed’

“Let us face the facts as they are; we cannot beat the deadline set by the ICC during our July 3 meeting. We have failed,” admitted Justice, National Cohesion and Constitutional Affairs minister Mutula Kilonzo.

At that meeting, the government committed to setting up the tribunal and provide information on witness protection and progress in investigations.

“On the other two, we have already achieved. But we have failed to convince the country to accept a credible judicial mechanism for trying the post-election violence perpetrators,” Mr Kilonzo said.

Parliament went on recess without discussing the Imanyara Bill, which proposes the establishment of such a tribunal. The Cabinet rejected a similar proposal by Mr Kilonzo.

Mr Kilonzo said although the Bill had received the Speaker’s consent, it was still not tabled. “Therefore, we haven’t fulfilled our obligation,” he said, adding that he would either write or call ICC prosecutor Luis Moreno-Ocampo to brief him on the new development.

“We will tell him sorry,” he said.

The minister did not seem too sure how he was going to get in touch with Mr Moreno-Ocampo, saying he had not decided whether to write or call him.

Closed chapter

He also seemed to have given up on a local tribunal, at one time saying he considered it a “closed chapter” and that the sooner Mr Moreno-Ocampo comes to Kenya, the better for the country.

Kenya has ratified and domesticated the Rome Statutes and the ICC prosecutor was free to come into the country. The Internal Security ministry had the power to extend such as invitation, said Mr Kilonzo.

A request for an extension of time is unlikely to be received warmly at The Hague.

In a statement on the ICC website, Mr Moreno-Ocampo said he wanted to make Kenya an example to the world on how to deal with impunity.

President Kibaki and Prime Minister Raila Odinga were to sign a pact for the formation of the tribunal by December 17, last year. After that, MPs were to have until January 30, 2009, to amend the Constitution and entrench the tribunal, which was to be up and running by March 1, 2009.

Kenya asked for more time until end of July, and later until September 3.

“The failure lies on the shoulders of the whole country and I cannot carry the baby alone,” Mr Kilonzo said.

He was speaking at a Naivasha hotel during an induction for members of the Truth, Justice and Reconciliation Commission (TJRC).

He told the team that the TJRC Act gave them the independence to do their work without interference.

Witch-hunting

“Universally, TJRCs are known to be very expensive. It is, therefore, expected that you will design a process and structures that are responsive of these facts,” the minister said.

The truth team is not an instrument of prosecution or witch-hunting, nor can it be a whitewash as the sceptics would want to suggest, he said.

Kenya has ratified and domesticated the Rome Statutes and the ICC prosecutor was free to come into the country. The Internal Security ministry had the power to extend such as invitation, said Mr Kilonzo.

A request for an extension of time is unlikely to be received warmly at The Hague.

In a statement on the ICC website, Mr Moreno-Ocampo said he wanted to make Kenya an example to the world on how to deal with impunity.

President Kibaki and Prime Minister Raila Odinga were to sign a pact for the formation of the tribunal by December 17, last year. After that, MPs were to have until January 30, 2009, to amend the Constitution and entrench the tribunal, which was to be up and running by March 1, 2009.

Kenya asked for more time until end of July, and later until September 3.

“The failure lies on the shoulders of the whole country and I cannot carry the baby alone,” Mr Kilonzo said.

He was speaking at a Naivasha hotel during an induction for members of the Truth, Justice and Reconciliation Commission (TJRC).

He told the team that the TJRC Act gave them the independence to do their work without interference.

Witch-hunting

“Universally, TJRCs are known to be very expensive. It is, therefore, expected that you will design a process and structures that are responsive of these facts,” the minister said.

The truth team is not an instrument of prosecution or witch-hunting, nor can it be a whitewash as the sceptics would want to suggest, he said.

“It cannot target particular communities or individual personalities, otherwise its purpose would be defeated,” he said.

Its job is to heal the wounds of the victims and reconcile the nation, he said and called on the international community to help. The induction was attended by TJRC chairperson Bethuel Kiplagat, his deputy Betty Murungi and other commissioners.

originally posted @ The Nation

The International Criminal Court Chief Prosecutor Moreno O’campo has proposed a three pronged approach to deal with the perpetrators of the post election violence that rocked Kenya after the announcement of the presidential election results on 30th December 2007.

Speaking at a meeting with Kenya’s Lands Minister James Orengo at the IC C headquarters in The Hague, Netherlands, O’campo routed for the creation of special courts to try those who committed the atrocities, as the ICC will deal only with those who bore the greatest responsibility of the violence.

He also added that the Truth Justice and Reconciliation Commission be used as an avenue to deliver justice through creating an enabling environment for confessions. He said through TJRC, many will seek forgiveness. The TJRC has been the preference of the political class, who are suspected to have been behind the violence.

In July, the Kenyan cabinet resolved to back the TJRC, contrary to agreements between the Kenyan delegation and O’campo that the Kenyan parliament sets up a special tribunal by the end of September 2009.

Orengo is at The Hague on the invitation of the Dutch Government for a human rights conference. Both Orengo and the ICC prosecutor addressed the conference, with the Kenyan lands minister presenting a paper on fighting impunity and peace building. He was part of the mediation team that came up with proposals of the formation of the Commission of Inquiry into the Post Election Violence, which proposed that the Kenyan parliament sets up a special tribunal to try those behind the mayhem, or the ICC takes over.

Currently, Kenyans and the international community await for the outcome of the Special Tribunal Bill that is being fronted by MP Gitobu Imanyara. The bill is currently at the publication stage. Two attempts by the government to set up the special tribunal have hit a brick wall, after the country’s parliament rejected the move.

originally posted @ Zimbabwe Metro