Kibaki opens new front against Hague trials

By ALPHONCE SHIUNDU ashiundu@ke.nationmedia.com and EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Saturday, April 28 2012 at 22:30

President Kibaki has launched a last ditch campaign to forestall the cases of four Kenyans facing crimes against humanity charges at the International Criminal Court.
His new frontier is a diplomatic campaign to have the accused — Deputy Prime Minister Uhuru Kenyatta, former head of Public Service Francis Muthaura, Eldoret North MP William Ruto and radio journalist Joshua Sang — tried by the Arusha-based East Africa Court of Justice.
President Kibaki on Saturday successfully lobbied his peers during an Extraordinary Summit of Heads of State of East African Community in Tanzania which he chaired, to pass a resolution to extend the jurisdiction of the court to cover crimes against humanity.
A dispatch by his press team said the summit welcomed the resolution to extend jurisdiction of the court and “directed the Council of Ministers to consider the matter by the end of May 2012 and report to an extraordinary summit to be convened immediately thereafter”.
The effort comes barely three days after members of the East African Legislative Assembly sitting in Nairobi passed a resolution to have the cases pulled out of The Hague and transferred to the Arusha-based court, though it has no jurisdiction over criminal matters. (READ: Assembly backs local trial of Ocampo Four)
The regional MPs expressed confidence that their resolution, plus a push to amend the clause in the East Africa Community Treaty forming the regional court, to allow it handle criminal matters, will be ratified in Saturday’s meeting at Ngurdoto in Arusha.
Though the EALA resolution was not listed in the summit’s official agenda, the MPs were optimistic that it would somehow be discussed, a move attributable to intense lobbying by Kenya.
Mr Kenyatta and Mr Ruto have indicated that regardless of the January 23 order by the ICC pre-trial judges committing them for trial, they intend to contest the presidential elections because the Constitution does not bar an individual facing legal proceedings from doing so.
The power elite around President Kibaki favours Mr Kenyatta to succeed him though the ICC matter has cast doubts over the DPM’s candidature.
The diplomatic campaign to save the four was re-reignited even as Chief Justice Willy Mutunga on Friday warned that requirements of Chapter Six of the Constitution on leadership and integrity will be fully enforced in the next election.
The chapter which demands that public officers bring integrity and honour to their offices as well as the country has been cited as a major hurdle between the two politicians and their presidential dream.
And it appears that even with the diplomatic efforts to delay the ICC trials and allow the two to run, the final decision on whether the suspects will be on the ballot paper will be made at home.
“That chapter talks about leadership across our society. Those of you running for office, whatever office, should know that if found to have been violent, or you have stolen votes or you brutalised voters chapter six will ensure that you will never run for political office again,” he told a meeting in Mombasa on Friday.
“Those running for office should read that chapter very carefully because if you are guilty it is the chapter that will make sure that you don’t run for any public office in this country,” he cautioned.
The CJ is also the president of the Supreme Court, the highest court in the land with original and exclusive jurisdiction over presidential election disputes.
However, lawyer George Kegoro argues that while the CJ’s announcement was logical and fair, the Judiciary cannot initiate the application of integrity standards on those seeking political office. (READ: New integrity bar should apply across the board)
He says it is the responsibility of Kenyans to initiate court action that would trigger decisions to implement the integrity standards.
“The courts must wait for cases on integrity to be brought before them before they can enforce the standards.
“Because of self-interest, the political leadership on which the initiation of integrity standards depends is reluctant to provide championship for such efforts.”
The newest campaign against the ICC cases, came this week from President Kibaki when he made his maiden State of the Nation address in Parliament.
The President broke his 500-day silence on the House resolution to have Kenya break links with the ICC and recalled “the fact that the House passed a motion that Kenya pulls out of the ICC”.
It was these words which confirmed the speculation that has been rife, that the government is not keen to hand over the Ocampo Four, when their day in the Netherlands-based court finally comes.
With the trial chamber having been set up, Kenya’s only option of stopping the cases — other than the appeal on jurisdiction — is to set up a local tribunal to prosecute the suspects and ask for transfer of the cases from the ICC.
But certain conditions must be met. One, there must be national prosecutions of the same suspects for similar crimes (as those they are facing at the ICC).
Secondly, the trials must not appear stage-managed to shield the accused individuals. Further, the proceedings must be conducted independently or impartially and they must meet accepted international standards of justice.
On the other hand, the UN Security Council can vote to postpone the trials for a year if it is convinced that the continuation of the cases is a threat to regional and international peace and security.
The government has explored these options but failed. Global non-governmental watchdog Human Rights Watch warned on Friday that there were plans afoot to scuttle the justice process since the government has shown no adequate commitment to handle any trials.
“Notwithstanding President Kibaki’s pledge in his State of the Nation address to pursue a local justice mechanism, new efforts are afoot to derail the ICC cases. (DOWNLOAD: Kibaki's State of the Nation speech)
“Recent comments by other members of government and parliament have suggested that the two ICC cases against four prominent Kenyans accused of committing crimes against humanity during the post-election violence should be ‘brought back to Kenya,’” the lobby said in a statement.
Mr Davis Malombe, deputy executive director of the Kenya Human Rights Commission said: “We welcome President Kibaki’s statement that Kenya still wishes to establish a local mechanism to prosecute international crimes, and it should be translated into concrete action in the form of a credible mechanism that will vigorously pursue and bring to justice other perpetrators not currently facing trial at the ICC.”
He, however, added that “politicians’ recent statements about bringing the ICC cases back to Kenya raise concerns that the proposed local mechanism could be a whitewash”.
A day after the President’s parliamentary address, Vice-President Kalonzo Musyoka stepped up calls for a “local solution”, with a poignant revelation that “serious consultations are underway which will make it possible for us to have the local option”.
But even more confusing was what appears to be a new ODM position on The Hague option.
Last Saturday, Cabinet minister and ODM stalwart Fred Gumo, a key ally of Prime Minister Raila Odinga, walked into a meeting convened by his party’s rivals in Kitale and in presence of Mr Kenyatta and Mr Ruto declared that the ICC trials should be transferred to Kenya before the elections.
Therefore, in just a week, political forces appear to have closed ranks about the fate of the Ocampo Four and are all scrambling for a solution that would please the suspects.

Uhuru,Muthaura seek to delay ICC trial

Deputy Prime Minister Uhuru Kenyatta (right) and former head of public service Francis Muthaura (centre) have asked the International Criminal Court Trial Chamber to delay proceedings against them until their appeals are determined April 25, 2012. On the left is prosecutor Luis Moreno-Ocampo. FILE
By OLIVER MATHENGE omathenge@ke.nationmedia.com
Posted Thursday, April 26 2012 at 15:43

Deputy Prime Minister Uhuru Kenyatta and former head of public service Francis Muthaura have asked the International Criminal Court Trial Chamber to delay proceedings against them until their appeals are determined.
The two argue that it would be “contrary to the interests of justice and their fair trial rights and an inefficient use of court resources”, to set a trial date and commence trial proceedings before the Appeals Chamber decides whether or not the ICC has jurisdiction over their case.
“The Defence hereby requests the Trial Chamber to invoke its inherent discretion and exercise its power pursuant to Rule 134(1) of the Rules of Procedure and Evidence to postpone the setting of a trial date until the Appeals Chamber has rendered its decision,” the joint application filed on Wednesday says.
Rule 134(1) says that Prior to the commencement of the trial, the Trial Chamber on its own motion, or at the request of the Prosecutor or the defence, may rule on any issue concerning the conduct of the proceedings.
Mr Kenyatta and Mr Muthaura are accused of crimes against humanity arising out of the 2007/08 post election violence and filed a joint application on February 14, appealing the decision by the Pre-Trial Chamber 11 that the cases are rightly before the court. The Appeals Chamber is yet to make a determination over the matter.
They tell the judges that proceeding to set a trial date before the ICC's jurisdiction is confirmed may result in “an inefficient use of both court and defence/prosecution resources concerning the conduct of preparations in the coming months".
“The Defence submits that unless the setting of a trial date is postponed, there may be an ‘appearance’ that the issue on appeal has been pre-determined in a manner which rejects the Defence submissions on jurisdiction. Such an appearance may in turn impact upon the integrity and credibility of the institution,” the two say in their application.
Mr Kenyatta and Mr Muthaura have also requested the Appeals Chamber that they be allowed to make an oral submission on the appeal challenging the jurisdiction of the court. Rule 156(3) says that the appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing.
“The Defence submits that although this is a matter within the discretion of the Appeals Chamber an oral hearing is the most effective method of scrutinising the substantive merits of the parties’ submissions. The need to ensure that the matter has been both thoroughly and publicly examined is underscored by the fact that a determination on the issue of jurisdiction may bring these proceedings to an end,” the two say in a separate application
Previously, Prosecutor Luis Moreno-Ocampo has submitted that the Presidency or the Trial Chamber might “deem it to be in the interests of justice” not to commence trial proceedings before the Appeals Chamber makes its final determination.

Mr Kenyatta and Mr Muthaura argue that the appeal challenging the jurisdiction of the court is “based upon an entirely valid and justified series of submissions reflective of the Dissenting Opinion of Judge Hans-Peter Kaul in Pre-Trial Chamber II".
In his dissenting opinion, Judge Kaul stated that the Court lacks jurisdiction in the Kenyan situation. Contrary to the Majority’s findings, he was “not satisfied that the crimes allegedly committed by Mr Muthaura and Mr Kenyatta occurred pursuant to or in furtherance of a policy of an organisation".
Eldoret North MP William Ruto and radio presenter Joshua Sang, who are also facing charges of crimes against humanity, have also lodged similar appeals on jurisdiction.

Kenya: Ex-Mungiki Leader Sought After Police Assault

Former Mungiki leader Maina Njenga has been summoned by the Criminal Investigations Department following chaos at a church in Nairobi on Sunday, when his supporters assaulted police officers.
Detectives at the Kasarani police station said they wanted Njenga to record a statement on what transpired when church members beat up police officers who had responded to a distress call.
"We want to talk to him to know what happened because he was there. This is part of the investigation because the crime committed is serious," a senior police officer said.
Police said they will also interrogate several other members of the church to determine if they were criminally responsible for the assault at the Hope International church in Garden estate.
At least three officers were beaten up and their weapons seized by youths, moments after they were called in to arrest a man who had been spotted with a pistol in the church.
The man had told the congregation that there was a plot to assassinate Njenga, but the crowd got agitated when they realised he had a gun.
Kasarani police Chief Augustine Thumbi said the crowd went on to attack officers he had dispatched there, on claims that "they too were on a mission."
The armed man and some of the youths were later arrested by the police and are being held at the Kasarani and Muthaiga police stations.
Several police officers were roughed up, three of them seriously during the incident.
Last week, police broke up a meeting Njenga was planning to attend at the Jumuiya conference centre in Limuru, sparking outrage from a section of leaders - including Prime Minister Raila Odinga.
Dozens of youths at the Limuru meeting and officers sustained injuries after anti-riot police lobbed teargas canisters at the group, triggering commotion that lasted hours as the youths engaged the officers in running battles.
While Odinga argues that police were not justified to break up the meeting, Police Commissioner Mathew Iteere has said they were acting on intelligence information that Mungiki youths were there to re-launch the outlawed sect.
The meeting dubbed Limuru 2B was to be addressed by among others Archbishop David Gitari and lawyer Paul Muite among others.
Organisers of the meeting insist it was a peace forum.
The meeting was intended to counter an earlier one held by Deputy Prime Minister Uhuru Kenyatta who was installed as the GEMA leader.

Tagged: East Africa, Human Rights, Kenya, Legal Affairs

Police warn Kenyan politicians over Hague utterances

By Collins Wanzala

(L-R) Kenyatta and Ruto, two Kenyan politicians vying for the presidency and involved in cases at The Hague.

Police in Kenya have issued a stern warning to politicians issuing inflammatory remarks ahead of the country`s general election that they will be dealt with harshly. Issuing the warning in Nairobi today, the country`s Police Commissioner Mathew Iteere said that Police will not sit back and watch as politicians go around the country campaigning and inciting Kenyans as it happened in 2007 where the country was politically divided leading to the chaotic general elections which left over 1000 dead and about half a million people uprooted from their homes.

Kenyan Police which is still faced by challenges in crime detention, investigation and housing for its officers has announced that it will, as a measure of preparedness to the forth coming general election, employ more than 7000 Police Officers.

On Thursday the International Criminal Court (ICC) Chief Prosecutor Louis Moreno-Ocampo wrote to Kenyan Attorney General Prof Githu Muigai complaining of interference of some people in Kenya with his witnesses in the case facing four Kenyans at The Hague. He complained that his alleged people had hacked into the mails of his witnesses and intimidated them. Recently there has been bitter exchange of words between columnists writing for various newspapers in Kenya over the ICC decision to deny granting an appeal by the four Kenyans who are facing charges at the court.

The complaint prompted Prof Muigai to order Mr Iteere, Director of National Security Intelligence Service Major General Michael Gichangi and the Director of the Criminal Investigation Department Muhorro Ndegwa to investigate the matter to the fullest and report to him immediately.

Co-Operative Development Minister Joseph Nyagah who was at the same function of the Kenya Police staff Sacco Annual General meeting where Iteere made the warning to the politicians, supported the Police Commissioner saying that if police stick to that warning, many politicians will desist from making incitement utterances in public meetings and campaign rallies which will save Kenya from following the 2007/08 chaos route.

President Kibaki who is in his final months of office hinted recently that the general election will be held in March 2013 and that he will respect the constitutional court ruling which passed the judgment. Prime Minister Raila Odinga has on the other hand claimed that the general election must be held in December this year.

Two of the four Kenyans who are facing crimes against humanity cases at The Hague, Deputy Prime Minister Uhuru Kenyatta and Eldoret North Member of Parliament William Ruto, are nursing ambitions of becoming President and have vowed that whatever comes their names must be on the presidential ballot box come the general election. The two have accused the Prime Minister of fixing them at The Hague, allegations that Odinga has vehemently denied.

The other two Kenyans charged at the court are former head of the Civil Service and Secretary to the Cabinet Ambassador Francis Muthaura and radio journalist Joshua Arap Sang.

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How Ruto, Uhuru hope to delay ICC

 

          William Ruto and Uhuru Kenyatta plan to run for president by either precipitating postponement of The Hague trials until elections are held or putting off polls until their trials are over.The Eldoret North MP and Deputy Prime Minister hope to achieve this either by piling pressure on The Hague to delay the trials through collection of five million signatures.

         Uhuru unveiled his strategy during last month's controversial meeting in Limuru, where his supporters mooted plans to collect two million signatures to demonstrate to the International Criminal Court it would be dangerous for the country to go for elections without him and Ruto in the race.
        Ruto upped the game on Tuesday when his supporters, meeting under the umbrella of Kamatusa, an acronym for Kalenjin, Masai, Turkana and Samburu communities, announced plans to compel the Government to apply to the United Nations (UN) security Council under Article 16 of the Rome Statute to defer the cases until after elections.
      They also agreed to collect three million signatures countrywide for the purposes of the petition, which will run side by side with Uhuru's that is directed at ICC.
     The Kamatusa group, that also endorsed Ruto as their undisputed leader, also decided that if the UN option fails, Members of Parliament should use their powers to postpone the elections "until such a time when there shall be a conducive environment where competitive politics can be practiced fairly and peacefully".
     The problem, however, is, there is no telling how long the trials would take, and so it remains unclear how their supporters who went public on Tuesday on the strategy, plan to craft amendment delaying elections.
Still, it is not even clear how they plot to deal with the controversial fact that this could come along with an extension of President Kibaki's term in office and probably even a longer life for the Tenth Parliament to forestall a vacuum in the governance structure.
    But in case they are ignored, Kalenjin community elders announced they would prevail upon athletes from their community to boycott this year's London Olympics.
"The community will announce a date when all people of Kenya who value justice and fairness will go to polling stations to append their signatures," said Kalenjin Council of Elders Chairman Major (Rtd) John Seii at the meeting in Eldoret.
   Despite the obvious logistical challenges, Seii also announced they would mobilise five million members of the Kalenjin community to travel to The Hague to take part in the cases.
   The meeting also declared Rift Valley a United Republican Party zone and gave Ruto a free hand to pick and work with political alliances he considers key to the community's interest.
   In what appeared choreographed message to the country and the world, as Ruto's supporters spoke in Eldoret, the Gema group met in Nairobi to strategise on how to collect two million signatures to demonstrate it would not be in the interest of Kenyans, their peace, and democracy to hold elections in which the two would not be running.

                                                                                             East African Standards

By Peter Mutai

Four ministers from Rift Valley aligned to Prime Minister Raila Odinga have appealed to the four suspects indicted by the International Criminal Court (ICC) not to politicise the cases.

The ministers, while pledging to stand by the four, urged them to approach the crime against humanity charges through a legal process.

Sally Kosgei (Agriculture), Franklin Bett (Roads), Margaret Kamar (Higher Education) and Home Affairs Assistant Minister Beatrice Kones cautioned the suspects against rallying their tribes behind them.

Dr Kosgei said going by the unsuccessful shuttle diplomacy to convince the UN Security Council to refer the cases to be prosecuted in Kenya, politicising the process will complicate the process further.

"We cannot approach the ICC cases facing four of our brothers with a siege mentality as it is wrong to tribalise the matter. We must work together as a team instead of using tribe to fight the ICC," Kosgei said.

The Aldai MP said calling on athletes from the Kalenjin community to boycott the upcoming London Olympics games in protest following the indictment of the four Kenyans will not help.

Speaking in Buret, Kericho County, during the ground breaking ceremony of the proposed Buret Technical Training Institute, Mr Bett appealed to the four suspects to embark on serious prayers devoid of politics.

justice

Also in attendance were MPs Joyce Laboso (Sotik) Charles Onyancha (Bonchari) and their Ainamoi counterpart Benjamin Langat.

Bett exuded confidence that justice will prevail and called on Kenyans to pray for Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Head of Civil Service Francis Muthaura and radio presenter Joshua Sang.

On the Eldoret meetings, the MPs said they did not get a formal invitation from the organisers, but said that as a community, all leaders should be involved in fighting for issues touching on the cases facing Ruto and Sang.

                                                                                                            Posted on East African Standard