Kenya’s High Court has postponed the case to determine whether two prominent Kenyans facing trial at the International Criminal Court (ICC) and aspiring to be president meet the constitution’s integrity standards for public office.
High Court Judge Issac Lenaola postponed the case to September 27 in order to allow lawyers representing the petitioners to amend their petition. He also postponed the case because the other two judges who were supposed to be sitting on the panel were not available to do so Tuesday.
Judge Lenaola ordered Ambrose Otieno Weda, who is representing some of the petitioners, to submit the amended petition within the next 14 days to the respondents and interested parties in the case. They in turn will have 14 days to respond to it, Lenaola ordered. He also said that if the petitioners wished to comment on the responses, they had seven days after that to do so.
Weda told the court the amended petition will include the names of other “substantive Kenyans” in order for the court to deal with the issue of integrity in leadership at one go. Weda declined to state whom he intended to name as additional respondents in the case before he had filed the amended petition.
The petitioners are individual voters, some civil society organizations, such as the Kenya Youth Parliament and the Kenya Youth League, as well as some of the people who were displaced from their homes during the bloody upheaval that shook Kenya following the country’s last election in December 2007.
The petitioners are asking the court to determine whether Deputy Prime Minister Uhuru Muigai Kenyatta and former Cabinet Minister William Samoei Ruto pass the integrity standard set in the constitution. The petitioners would like the court to rule on this because Kenyatta and Ruto have declared their intention to run for president while they are set to face trial at the ICC on charges of crimes against humanity.
Kenyatta faces five counts of crimes against humanity allegedly committed after the December 2007 presidential poll. His trial is due to begin on April 11, 2013. Ruto faces three counts of crimes against humanity and his trial begins on April 10, 2013. The next Kenyan elections are due to be held on March 4, 2013, one month before the ICC trials begin.
Some of the interested parties in the case are the Commission for the Implementation of the Constitution, which is an independent institution responsible for overseeing the process to implement Kenya’s nearly two-year old supreme law. Others include the Law Society of Kenya and Kenyatta’s newly formed political vehicle, The National Alliance party.
The constitution lays out in broad terms the integrity standards any one holding, seeking to hold or being appointed to public office must satisfy. These are in chapter six of the constitution. The National Assembly is also required to pass a law that expands the broad principles on integrity in the constitution and that also describes the penalties to be applied in case of violation. The National Assembly is yet to do this because a draft bill is at the public comments stage.
This lack of legislation is one of the grounds for preliminary objections to the case some lawyers indicated on Tuesday that they would be making. They will be arguing the court has no jurisdiction because no subsidiary law has been enacted. They will argue the court is in effect being asked to do the work of the legislature.
by Tom Maliti
Wednesday, August 29, 2012
Suspected Offenders of Kenya Post-Election Violence To Escape Prosecution
The task-force set up by Director of Public Prosecutions Keriako Tobiko in April said most of the 8,869 cases reported fell below the prosecutable level and may not be pursued by the prosecutor’s office.
Of these, 5,374 suspects are still under investigation, the task-force pointed out when it gave an update on the cases under review.
A further 425 are yet to be arrested even though their identities are known. Another 125 have been withdrawn from court.
On Friday, the team chaired by Senior Deputy Public Prosecutor Dorcas Oduor said the police files did not have essential information making it difficult to pursue them.
“A cursory examination of the files shows that they are incomplete and do not containing essential information such as witness statements of complainants or investigating officers,” the task force said referring to murder investigations cases.
Where the crimes were committed was also not clearly identified therefore the magistrates given the files could not issue any orders of inquiry into the deaths.
While looking at the police files, the team categorised the cases into three: sexual and gender-based violence, murder and general offences.
Sexual offences were not properly reported too denying victims a chance to press charges against their attackers.
Ms Oduor’s team evaluated 150 sexual and gender-based violence cases and reported that they were filed long after the offences hence the inability to capture necessary evidence vital in prosecuting the offenders.
“Most complainants did not identify the perpetrators as the attacks were at night or the people were unknown to them,” the task force document states.
Injuries resulting from the attacks could not be substantially verified as there were no P3 or medical reports to back up their claims.
Additionally, those raped or subjected to other sexual abuses only remembered the month and year of their ordeals but not the exact dates.
General offences constituted more than three quarters of the total cases and included arson, theft and malicious damage. In pursuing these, the task force also found glaring gaps that had made it difficult to conclude them fast.
Vital information such as the identity of the suspects, delays in reporting case, inadequate police statements and lack of witnesses were cited.
“Some complainants saw their houses being burnt from a distance but they were unable to identify the raiders, invaders and arsonists,”
The latest findings put to question the commitment of the police to satisfactorily investigate the 2007 post-election offences. Some of the officers are also under investigation in 47 sexual offences.
Their names have been forwarded to the Mr Tobiko for further investigation and prosecution.
The task force findings puts the police on the spotlight once again as most files were incomplete, did not have investigation diaries or statements from investigating officers.
Mr Tobiko appointed the multi-agency task force on April 20 to review, re-evaluate and re-examine post election violence files. So far the team has looked at 4,408 files.
Ms Oduor said they were seeking other alternatives to help the victims who may not get redress from the courts owing to lack of adequate evidence.
“We have held discussions with the International Court of Justice, Fida-Kenya and other institutions to see ways the victims could be helped,” she said on Friday during a press conference at the National Social Security Fund building in Nairobi.
Source: Daily Nation
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