The ICC Ruling

ICC-Sign

23rd January has become an important date on the calendar for many Kenyans because the International Criminal Court (ICC) is expected to seal the fate of the Ocampo Six with a ruling that will decide whether there is enough evidence to warrant the case to go to full trial. The development is expected to radically affect the presidential campaigns because two of the six suspects - Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto - are eyeing the presidential post.

Summary of events so far

On the 9 of July 2009, the evidence that had been gathered by Kenya Court of Appeal Judge Philip Waki and a sealed envelope were sent to the ICC chief prosecutor, Luis Moreno-Ocampo. Four months later, on 5th November 2009, the pro¬secutor announced he intended to request authorization to proceed with an investigation to determine who bore greatest responsibility for crimes committed during the post-election violence. On 15th December 2010 Moreno-Ocampo announced the names of the six suspects and many of the legislators who had opposed the tribunal bill accused the court of selective justice.

The ICC then conducted pre-trial hearings to determine if there was adequate evidence to proceed to a full trial. In the first case, MPs William Ruto, Henry Kosgey and radio presenter Joshua arap Sang are suspected of being criminally responsible pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of:

  • Murder (article 7(l)(a))
  • Forcible transfer of population (article 7(l)(d))
  • Persecution (article 7(l)(h))

On the other hand, Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and Postmaster General Hussein Ali are allegedly criminally responsible pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of:

  • Murder (article 7(l)(a))
  • Forcible transfer (article 7(l)(d))
  • Rape (article 7(l)(g))
  • Persecution (article 7(l)(h))
  • Other inhumane acts (article 7(l)(k))

Possible Verdicts

  • The judges can confirm charges against some suspects, and set others free, as criminal responsibility is not group responsibility but individual criminal responsibility.
  • The judges can reject some of the counts against individual suspects and confirm others, for example out of the five charges; three could be thrown out, leaving two.
  • The three judges can confirm the charges but request the prosecutor to amend them. For example, the chamber can grant Prosecutor Luis Moreno Ocampo's wish to include additional charges of rape in Kibera and Kisumu against Muthaura and Ali.
  • The judges can drop all the charges pressed against the six suspects. The judges can decide that prosecution evidence was insufficient to meet the threshold and reject all the charges for the six suspects.

If the judges decide to commit a suspect to trial, the defendant continues to be presumed innocent until guilt is proven beyond reasonable doubt. The defendant will remain free unless ordered otherwise by the judges. This can happen if for example the suspect violates any of the conditions put on him by the judges.

Where we currently stand

So far, efforts to establish a special tribunal to try the post-election violence suspects failed after parliament's attempts to pass a Bill proposing the same became unsuccessful. Even last minute lobbying by the president and prime minister did not convince parliamentarians. It may seem that many who were against a Kenyan tribunal were of the assumption that the process in The Hague would be longer and more drawn out, enabling the suspects with presidential ambitions to participate in the forthcoming election.

Though the ICC cannot bar them from vying, Law Society of Kenya (LSK) chairman Kenneth Akide says that anyone can file a case in local courts citing Chapter Six of the Constitution on covers leadership and integrity and lock them out. Article 66 of the Rome Statute, however, states that everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. Article 99(3) of our constitution further provides that a person cannot be disqualified from being elected as a member of parliament unless all possibility of appeal or review of the relevant sentence or decision has been exhausted. This is an indicator that the ICC process cannot bar the named suspects from participating in the forthcoming elections.

To several Kenyans, nonetheless, the ICC's involvement is a gesture that embedded impunity for wealthy and powerful politicians will not be permitted to continue. The International Court will prosecute perpetrators of gross electoral violence if the national courts are unable or unwilling. For politicians cultured to impunity, this will change how politics are conducted in our country.

The Kenyan government needs to close the impunity gap by complementing the ICC process with a similar national process. It should begin by directing the attorney general to investigate other individuals suspected of involvement in the violence that followed the 2007 elections with a view to carrying out prosecutions in the domestic courts.

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