ICC trials can’t be transferred, rights activists tell Kibaki
William Ruto (top left), Joshua arap Sang (bottom left) Uhuru Kenyatta (centre) and Francis Muthaura (right). Photo/FILE
By BERNARD NAMUNANE bnamunane@ke.nationmedia.com AND MIKE MWANIKI mmwaniki@ke.nationmedia.com
Posted Monday, April 30 2012 at 22:30
Posted Monday, April 30 2012 at 22:30
Human rights activists on Monday warned that the regional court in Arusha had no capacity to try the Ocampo Four.
Law Society of Kenya (LSK) chairman Erick Mutua said the push to refer the cases from The Hague was in bad faith and questioned the preparedness of the East African Court of Justice (EACJ) to hear the cases.
“Whereas the LSK welcomes the move to extend the jurisdiction of the EACJ to include criminal jurisdiction, the fact that this is done to support the proposition to refer the ICC cases to the Arusha Court is in bad faith. The LSK is opposed to the transfer of the said cases from The Hague,” he said in Nairobi.
Mr Mutua said the Rome Statute that established the ICC had no provision for transfer of cases before it to another court outside its jurisdiction.
Justice for victims
“Under international law where there is failure by a state to exercise its criminal jurisdiction over those responsible for international crimes or where the state is incapable of doing so, the appropriate forum is the ICC under the Rome Statute or an ad hoc tribunal to be established by the United Nations. The East African Court of Justice is not any of that,” he said.
The Kenya National Commission on Human Rights (KNCHR) said the East African Legislative Assembly (EALA) or the African Union could not challenge the admissibility of the cases at The Hague since they are not parties to the Rome Statute.
“The government should realise that states cannot ask the ICC to ‘transfer’ a case to a particular judicial body or institution” said KNCHR commissioner Lawrence Mute at a media briefing in Nairobi.
He warned the decision was not in the best interests of the victims of the 2007/8 election violence that killed 1,133 people and displaced 650,000 others.
Lawyers say that President Kibaki’s latest attempt to stop ICC cases is in vain, pointing out that the mandate, the set-up and the funding of the EACJ makes it difficult for the Arusha Court to try the cases.
Expanded mandate
“It (the campaign) cannot succeed. Even if it were to succeed, it will take at least two years because of the many things that are required. It is basically an impracticability,” said one of the experts who could not be named as he work with the government and the ICC.
Another lawyer said member states would have to invest heavily in the Arusha Court to convince the international community that victims of the post election violence would get justice.
“The court has no prosecutor and the witness protection unit has not even been conceptualised. The practical things that are needed to try crimes against humanity are not there. How do you then expect this to be the option to The Hague?” he posed.
Last week, President Kibaki chaired the EAC heads of State summit which passed a resolution to expand the mandate of the Arusha court to include criminal jurisdiction.
Previously, the court was mandated to try crimes related to human rights.
Earlier, the EALA had passed a motion in support of the transfer of the cases from The Hague
Law Society of Kenya (LSK) chairman Erick Mutua said the push to refer the cases from The Hague was in bad faith and questioned the preparedness of the East African Court of Justice (EACJ) to hear the cases.
“Whereas the LSK welcomes the move to extend the jurisdiction of the EACJ to include criminal jurisdiction, the fact that this is done to support the proposition to refer the ICC cases to the Arusha Court is in bad faith. The LSK is opposed to the transfer of the said cases from The Hague,” he said in Nairobi.
Mr Mutua said the Rome Statute that established the ICC had no provision for transfer of cases before it to another court outside its jurisdiction.
Justice for victims
“Under international law where there is failure by a state to exercise its criminal jurisdiction over those responsible for international crimes or where the state is incapable of doing so, the appropriate forum is the ICC under the Rome Statute or an ad hoc tribunal to be established by the United Nations. The East African Court of Justice is not any of that,” he said.
The Kenya National Commission on Human Rights (KNCHR) said the East African Legislative Assembly (EALA) or the African Union could not challenge the admissibility of the cases at The Hague since they are not parties to the Rome Statute.
“The government should realise that states cannot ask the ICC to ‘transfer’ a case to a particular judicial body or institution” said KNCHR commissioner Lawrence Mute at a media briefing in Nairobi.
He warned the decision was not in the best interests of the victims of the 2007/8 election violence that killed 1,133 people and displaced 650,000 others.
Lawyers say that President Kibaki’s latest attempt to stop ICC cases is in vain, pointing out that the mandate, the set-up and the funding of the EACJ makes it difficult for the Arusha Court to try the cases.
Expanded mandate
“It (the campaign) cannot succeed. Even if it were to succeed, it will take at least two years because of the many things that are required. It is basically an impracticability,” said one of the experts who could not be named as he work with the government and the ICC.
Another lawyer said member states would have to invest heavily in the Arusha Court to convince the international community that victims of the post election violence would get justice.
“The court has no prosecutor and the witness protection unit has not even been conceptualised. The practical things that are needed to try crimes against humanity are not there. How do you then expect this to be the option to The Hague?” he posed.
Last week, President Kibaki chaired the EAC heads of State summit which passed a resolution to expand the mandate of the Arusha court to include criminal jurisdiction.
Previously, the court was mandated to try crimes related to human rights.
Earlier, the EALA had passed a motion in support of the transfer of the cases from The Hague
Our president appears to be very naïve about this matter; my opinion is that he is more interested with saving the accused than seeking justice for the victims. Everyone knows on which side he stands and I am glad that this is his last term. He seems to have a hidden agenda to maybe protect himself also Some collateral benefit opportunity for Ruto and Sang here!! The government is working round the clock to save their persons from justice but things seem to hit a hard wall.... there is something in the air. Now we know! And we keep watching Another naive move by the certain circles within the government!!! Why are they doing this, is there something they are trying to hide? Trial is about both the victim and the accused.
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