Helping Post-Election Violence Victims: Write to Ocampo

[ICC.supporter]

theStar

We will take orders from no-one, says CJ Mutunga

Friday, 01 June 2012 14:54

BY NZAU MUSAU

CHIEF Justice Willy Mutunga put the government on notice that the new judiciary will not take instructions from anyone and that no decision will be too tough to make. His remarks were seen as an apparent response to Finance minister Njeru Githae’s statement who, a fortnight ago, said the government did not have money to conduct mass by-elections if the courts ordered for the same. Githae said this shortly after a group of Kenyans moved to court to challenge political party defectors.

Speaking at the launch of the judiciary transformation framework at KICC yesterday Mutunga said the constitution must be upheld to the letter. “They would do well to note that the office of the Chief Justice is not a transmission station for instructions from any quarter – the Executive, the legislature, civil society, capital or any organised interest. “ I do not tell judges what to decide and no Kenyan, however low or high, should think that they can ask me to do so. I have not done it and I will not do it,” he said during the launch which was attended by judges,magistrates and court officials from all levels of the judiciary.

He said those focusing on him as the sole driver for reforms in the judiciary were mistaken as there was a “large, critical mass” of Kenyans in the judiciary who shared a similar vision for transformation of the judiciary. Mutunga said it was too late for anyone to resist change. “The forces against change have no alternative but to obey the constitution unless they want to overthrow it. The old order is dead. What is uncertain is how expensive the forces resisting change will make at the funeral,” he said.

The decision to transform the judiciary was being driven by the constitution and the high expectations of Kenyans. Mutunga said the judges and other judicial staff owed it to themselves to create an institution of pride and to make the judiciary the most prestigious, attractive, and effective arm of government. “I am sure that a great deal of professional satisfaction is to be derived from working for an institution of distinction and not one that is the object of constant public scorn and ridicule,” he said. He said the “burden of history” required him to provide leadership in the creation of a new institution and he would do it with “pleasure and uttermost conviction.” “No decision will be too tough for me to make if that is the price we have to pay to meet the aspirations of the Kenyan people.

The time for testing is past. Now is the time for results. We must all transform or perish,” he said. The CJ unveiled a 10-point action plan of the transformation which entails access to justice, public engagement, leadership and management and promotion of ICT. Every court will now have a customer care desk and a court counsel to provide information about the procedures one’s needs to follow, especially in cases where one would like to represent oneself. Court documents will also be simplified. “Ultimately, our performance will be weighed on the scales of humanity and democracy. These commitments will be published
in a Litigants’ Charter, which will be our contract with the Kenyan people,” he said. Mutunga said the new judiciary will always defend its independence in helping the other arms of government to realize a new Kenya, he said.

Judicial staff will be motivated to perform, rewarded fairly and given opportunities for their personal and professional growth. “We shall match staff to work, skills to career progression, and additionally set up mortgage, medical and loan facilities. Policies on transfer as well as training and scholarships will be designed to make working in the Judiciary a competitive career choice,” he said. He said the human resource and finance functions of the judiciary will be devolved to 17 regions around the country. All the 47 counties will also have functioning High Courts.

Mutunga said that while some of the judiciary’s activities were currently receiving financial support from donor partners, Kenyans will eventually pay for the services they get and must demand the requisite accountability. The CJ unveiled a new statue of the “People’s Wanjiku” which he said will be erected within the grounds of the proposed judiciary headquarters.

http://www.the-star.co.ke/national/nati ... cj-mutunga

[Terminator]

When they vetted and confirmed Mutunga, a lot of the MPs did not realize he is a pit-bull. Given a second chance, there is no way they would confirm him.

Below is my favorite quote.

The forces against change have no alternative but to obey the constitution unless they want to overthrow it. The old order is dead. What is uncertain is how expensive the forces resisting change will make the funeral.

[Terminator]

The indefatigable Githu will not tire to do what he was hired for. They will ask the ICC to put off or postpone the trials until after the elections. You will note elsewhere confirmation of my earlier observation that Raila was at the heart of a rescue mission known to the suspects on his earlier trip to the UK. The fate of justice for the victims has no voice in government at the moment as everyone scampers to "rescue" the suspects for all manner of personal interests.

There is no legal ground on which to base this latest attempt to scuttle justice at the ICC. Its means more money poured down the drain. As victims continue to languish in sub-human conditions. Uncompensated.

The Government is preparing to make yet another political attempt to delay or prevent the planned trials of four Kenyans at the International Criminal Court.

This time, however, the move appears to have support from both sides of the Grand Coalition. Previously, ODM leaders have been inclined to support international pressure for the two Kenya cases tied to the post-election violence to be heard and determined without delay. Political considerations changed that.

A high-level delegation will travel to The Hague next week to meet new ICC prosecutor Fatou Bensouda and her outgoing predecessor Luis Moreno-Ocampo. It will include Cabinet ministers and officials from the State Law Office and the Office of the Director of Public Prosecutions.

The visit is expected to see a last-ditch attempt to convince the court to delay the trials of the four accused until after the General Election. The DPP’s office has been working on possible trials for PEV crimes in Kenyan courts.

Challenging court

Attorney General Githu Muigai has confirmed to The Standard On Saturday that he is set to lead the high-powered Government delegation to The Hague. However, Prof Muigai described the visit as a “familiarisation tour”.

The trip comes just days after the unanimous rejection of appeals by the ICC accused challenging the court’s jurisdiction.

Deputy Prime Minister Uhuru Kenyatta, former Head of the Civil Service Francis Muthaura, Eldoret North MP William Ruto and radio presenter Joshua Sang face international crimes charges in two separate cases.

Assistant Minister Lewis Nguyai, a defence witness for Uhuru at pre-trial hearings earlier this year, said the Government’s latest move was “good”. However, he was skeptical it would change anything, arguing that the ICC has been very rigid on the Kenya cases.

“The AG’s attempt is good, but it has no serious legal pivots to lean on. We can only pray that the delegation succeeds in their visit,” said Nguyai.

Belgut MP Charles Keter, a Ruto ally, also welcomed the move.

“Whatever can be done to ensure there is a delay so as to enable a level playing ground in the coming elections should be supported,” Keter said.

As if in preparation for this final push, Mr Kenyatta last week declared he would not talk about the ICC cases any more. The Gatundu South MP has repeatedly declared he is innocent and unfairly targetted. In the previous few months, Uhuru led ‘prayer rallies’ at which the court and those he saw as reveling in his misfortunes came under attack from some of his allies.

All efforts by the Government and the four accused to prevent a trial have failed to persuade ICC judges. Full trials are possible at any time after a status conference at the Hague-based court scheduled for June 11 and 12 this year.

The Kenya cases have put the political lives of presidential hopefuls Uhuru and Ruto on the line.

Despite recent disclosures that an integrity law in the pipeline might only bar convicted persons from running for office, the two will almost certainly face legal challenges based on provisions in the chapter on leadership in the country’s Constitution. It is not certain what the outcome would be under the reforming Judiciary led by Chief Justice Willy Mutunga.

International stakeholders

The legal requirement that they be physically present at The Hague during their own trials could also deny them an opportunity to campaign effectively. There are fears their elimination from the presidential race due to an ICC scheduling decision could be seen as interference in Kenya’s political affairs. This is partly why the move to delay the cases at least until after the election is said to enjoy wide support inside Government.

Prime Minister Raila Odinga, an ardent supporter of the ICC process, is said to be signaling support for the delay of the cases until after the March 2013 elections. Credible sources said Raila has been seeking the backing of international stakeholders for delayed trials. Three weeks ago, the PM was in London on a private visit where he held talks with British Minister for African Affairs Henry Bellingham. Reports of the meeting claimed Mr Bellingham stuck to the official line of support for the trials at the earliest convenience. During a trip to the US last month, the PM met several members of the United States Senate. It is unclear whether ICC issues were discussed.

“It is true, the Government has requested a meeting between the Kenyan team dealing with the ICC and the Office of the Prosecutor, mostly for familiarisation purposes,” Muigai said. He added that the Government delegation was also keen to assure Bensouda of Kenya’s full co-operation.

“We are going to give our official assurances that, as a Government, we have co-operated with her predecessor Moreno-Ocampo and we are going to continue to do so (with her),” the AG stated.

Prof Muigai, DPP Keriako Tobiko and technical staff from their offices will join members of the Cabinet committee on the ICC on the trip, which was previously scheduled for yesterday.

The group is expected to leave the country before the end of next week. While our sources indicate Cabinet ministers Otieno Kajwang’ (Immigration), Prof Sam Ongeri (Foreign Affairs) and Eugene Wamalwa (Justice) are among those who are set for the mission, Mr Kajwang’ claimed he had not been informed about it.

“I have not been told about it. I have no information at all,” said Kajwang’, who is a member of the Cabinet committee on ICC. Other members include its chairman, Prof George Saitoti (Internal Security), Amason Kingi (Fisheries) and James Orengo (Lands).

The group is also set to discuss ongoing plans in Kenya to reopen post-election violence cases. The DPP’s office has been conducting an audit on some 3,500 cases to determine which can go ahead. However, the ICC recently blocked Kenya’s appeal for access to evidence gathered by the prosecutor’s office to facilitate the revival of local cases.

Shaky security

Also to be brought to Bensouda’s attention are various local and international reports from different Government agencies pointing to a shaky security situation in Kenya if the two ICC accused running for president were barred from participating in the election on the basis of the cases.

The Government team also hopes to end perceived hostility between it and the prosecutor’s office over the two cases.

http://standardmedia.co.ke/?articleID=2 ... e-mission'

[ICC.supporter]

Termie,

Whether the Ocampo 4 will face justice or not will determine a lot about Kenya's future. Kenya will either be a place for impunity to thrive or it will be a place where people like the post-election violence victims have real protection under the law. Kenyans have been conditioned to believe that people like Uhuru and Ruto have God/Tribal-given rights to be above the law. We shall see how things play out.

[ICC.supporter]

Standard Digital

Thursday, May 31 2012

Githu leads ICC 'rescue mission'

By ISAAC ONGIRI

The Government is preparing to make yet another political attempt to delay or prevent the planned trials of four Kenyans at the International Criminal Court.

This time, however, the move appears to have support from both sides of the Grand Coalition. Previously, ODM leaders have been inclined to support international pressure for the two Kenya cases tied to the post-election violence to be heard and determined without delay. Political considerations changed that.

A high-level delegation will travel to The Hague next week to meet new ICC prosecutor Fatou Bensouda and her outgoing predecessor Luis Moreno-Ocampo. It will include Cabinet ministers and officials from the State Law Office and the Office of the Director of Public Prosecutions.

The visit is expected to see a last-ditch attempt to convince the court to delay the trials of the four accused until after the General Election. The DPP’s office has been working on possible trials for PEV crimes in Kenyan courts.

Challenging court

Attorney General Githu Muigai has confirmed to The Standard On Saturday that he is set to lead the high-powered Government delegation to The Hague. However, Prof Muigai described the visit as a “familiarisation tour”.

The trip comes just days after the unanimous rejection of appeals by the ICC accused challenging the court’s jurisdiction.

Deputy Prime Minister Uhuru Kenyatta, former Head of the Civil Service Francis Muthaura, Eldoret North MP William Ruto and radio presenter Joshua Sang face international crimes charges in two separate cases.

Assistant Minister Lewis Nguyai, a defence witness for Uhuru at pre-trial hearings earlier this year, said the Government’s latest move was “good”. However, he was skeptical it would change anything, arguing that the ICC has been very rigid on the Kenya cases.

“The AG’s attempt is good, but it has no serious legal pivots to lean on. We can only pray that the delegation succeeds in their visit,” said Nguyai.

Belgut MP Charles Keter, a Ruto ally, also welcomed the move.

“Whatever can be done to ensure there is a delay so as to enable a level playing ground in the coming elections should be supported,” Keter said.

As if in preparation for this final push, Mr Kenyatta last week declared he would not talk about the ICC cases any more. The Gatundu South MP has repeatedly declared he is innocent and unfairly targetted. In the previous few months, Uhuru led ‘prayer rallies’ at which the court and those he saw as reveling in his misfortunes came under attack from some of his allies.

All efforts by the Government and the four accused to prevent a trial have failed to persuade ICC judges. Full trials are possible at any time after a status conference at the Hague-based court scheduled for June 11 and 12 this year.

The Kenya cases have put the political lives of presidential hopefuls Uhuru and Ruto on the line.

Despite recent disclosures that an integrity law in the pipeline might only bar convicted persons from running for office, the two will almost certainly face legal challenges based on provisions in the chapter on leadership in the country’s Constitution. It is not certain what the outcome would be under the reforming Judiciary led by Chief Justice Willy Mutunga.

International stakeholders

The legal requirement that they be physically present at The Hague during their own trials could also deny them an opportunity to campaign effectively. There are fears their elimination from the presidential race due to an ICC scheduling decision could be seen as interference in Kenya’s political affairs. This is partly why the move to delay the cases at least until after the election is said to enjoy wide support inside Government.

Prime Minister Raila Odinga, an ardent supporter of the ICC process, is said to be signaling support for the delay of the cases until after the March 2013 elections. Credible sources said Raila has been seeking the backing of international stakeholders for delayed trials. Three weeks ago, the PM was in London on a private visit where he held talks with British Minister for African Affairs Henry Bellingham. Reports of the meeting claimed Mr Bellingham stuck to the official line of support for the trials at the earliest convenience. During a trip to the US last month, the PM met several members of the United States Senate. It is unclear whether ICC issues were discussed.

“It is true, the Government has requested a meeting between the Kenyan team dealing with the ICC and the Office of the Prosecutor, mostly for familiarisation purposes,” Muigai said. He added that the Government delegation was also keen to assure Bensouda of Kenya’s full co-operation.

“We are going to give our official assurances that, as a Government, we have co-operated with her predecessor Moreno-Ocampo and we are going to continue to do so (with her),” the AG stated.

Prof Muigai, DPP Keriako Tobiko and technical staff from their offices will join members of the Cabinet committee on the ICC on the trip, which was previously scheduled for yesterday.

The group is expected to leave the country before the end of next week. While our sources indicate Cabinet ministers Otieno Kajwang’ (Immigration), Prof Sam Ongeri (Foreign Affairs) and Eugene Wamalwa (Justice) are among those who are set for the mission, Mr Kajwang’ claimed he had not been informed about it.

“I have not been told about it. I have no information at all,” said Kajwang’, who is a member of the Cabinet committee on ICC. Other members include its chairman, Prof George Saitoti (Internal Security), Amason Kingi (Fisheries) and James Orengo (Lands).

The group is also set to discuss ongoing plans in Kenya to reopen post-election violence cases. The DPP’s office has been conducting an audit on some 3,500 cases to determine which can go ahead. However, the ICC recently blocked Kenya’s appeal for access to evidence gathered by the prosecutor’s office to facilitate the revival of local cases.

Shaky security

Also to be brought to Bensouda’s attention are various local and international reports from different Government agencies pointing to a shaky security situation in Kenya if the two ICC accused running for president were barred from participating in the election on the basis of the cases.

The Government team also hopes to end perceived hostility between it and the prosecutor’s office over the two cases.

http://www.standardmedia.co.ke/?article ... e-mission'

[ICC.supporter]

Canada.com

Butchers beware: Taylor war crimes case a giant leap forward for international law, say experts

By Douglas Quan, Postmedia News June 1, 2012

The sentencing this week of former Liberian president Charles Taylor to 50 years in prison for aiding and abetting war crimes in neighbouring Sierra Leone has been described as a watershed moment in international justice.

Postmedia News talked to two international law experts — Valerie Oosterveld of Western University in London, Ont., and Errol Mendes of the University of Ottawa — to discuss the significance of this case, which world leaders might appear next on a court docket and the challenges involved in prosecuting them.

Q: What did Taylor do?

A: Though he never stepped foot in Sierra Leone during its civil war, Taylor provided arms and other support to rebels with the Revolutionary United Front in return for "blood diamonds." Those rebels were found to have committed numerous atrocities against civilians, including keeping sex slaves and hacking off the limbs of children.

Q: Why is this case important?

A: The case was significant because it was the first time since the Second World War that a head of state was prosecuted and convicted. Furthermore, the Special Court for Sierra Leone — the judicial body set up by the government of Sierra Leone and the United Nations — sent a clear message that "international justice will get you if you start fomenting crimes against humanity from another jurisdiction," Mendes said. "That's huge."

Q: What leaders might be next?

A: There are many active cases before the International Criminal Court, a permanent tribunal based in The Hague, Netherlands and formed in July 2002. The most prominent figure being tried at the moment is former Ivory Coast President Laurent Gbagbo on four counts of crimes against humanity.

The ICC has issued an arrest warrant against another head of state, Omar al-Bashir, the president of Sudan. He is accused of war crimes, crimes against humanity and genocide committed in Darfur.

There is also a warrant for the arrest of Saif al-Islam, son of former Libyan dictator Moammar Gadhafi, for alleged crimes against humanity. However, Libya has so far refused to surrender him because it wants to try him in that country.

In 2005, a warrant was issued for Joseph Kony, head of the Lord's Resistance Army in Uganda. He is accused of a pattern of "brutalization against civilians."

Outside of the ICC, there are two ongoing trials before the International Criminal Tribunal for the Former Yugoslavia, involving Ratko Mladic, the former Bosnian Serb military leader, and Radovan Karadzic, the former Bosnian Serb leader.

Q: What about Robert Mugabe of Zimbabwe and Bashar Assad of Syria? Aren't they accused of atrocities?

A: Generally, the ICC can only open cases against people in countries that are members. There are 121 members; Zimbabwe and Syria are not among them.

However, the ICC can open investigations into non-member countries if it gets a referral from the United Nations Security Council. This is what happened in the cases of Libya and Sudan.

Oosterveld said it wouldn't surprise her if the Security Council eventually makes such a referral in the case of Syria, especially if mass killings — such as the recent massacre in Houla — continue and efforts by special envoy Kofi Annan to strike a ceasefire do not succeed.

Mendes agreed, saying that even Syria's ally on the Security Council, Russia, may be compelled to go along with a referral.

Q: Some arrest warrants were issued by the ICC years ago but nothing has come of them. Why?

It is true that the ICC does not have its own police force to go after people with warrants against them. But Oosterveld said one weapon the ICC does have at its disposal is convincing other states to "tighten the noose" around a wanted leader by preventing that leader from crossing into their borders. Under ICC regulations, member countries are obligated to arrest a leader who is the subject of a warrant.

But Mendes noted that not all countries have complied. Sudan's al-Bashir, for instance, has freely travelled to ICC-member countries, such as Chad and Kenya.

Q: Let's say al-Bashir or al-Assad are arrested. What kind of a trial might one expect?

It's possible they would try to stall the process for as long as possible, in the same way that former Yugoslav president Slobodan Milosevic did up until his death in 2006, Mendes said.

Prosecutors might have an easier time gathering evidence against al-Assad given the large volumes of video and other evidence that have come out of Syria in the recent past. "That stuff will be pretty damning," Mendes said.

If those leaders insist they had no connection to atrocities, the ICC's chief prosecutor, Luis Moreno-Ocampo, likely would argue that the leader is still criminally responsible even if the crime was committed through another person, Mendes said. Ocampo, he said, likes to use the analogy of a clockmaker who devises a bomb, sets the timer and walks away just before it blows — the clockmaker sets everything in motion right up until the final deadly act.

Oosterveld said leaders often are careful to avoid leaving behind any evidence of direct orders. The challenge for prosecutors is to somehow show that they were still intimately involved in a "common plan." That's what happened in the case of Taylor, who insisted he was a "peacemaker," she said.

Q: After 10 years in existence, is the ICC effective?

A: While the ICC has convicted only one person in the past 10 years, Congolese warlord Thomas Lubanga, the establishment of the ICC still marks a major milestone in international justice, on the same level as the impact of the Magna Carta, Mendes said.

"For the first time in human history the majority of the global community has said we're willing to abide by the rule of law even if it reaches to the highest levels of our own leadership," he said. "It's a promise to combat impunity wherever and whenever it occurs, even within our own borders."

Oosterveld agreed. While the ICC has had growing pains, it has an active docket and is breaking new ground, she said. In the past wars were fought between two armies over land. Today's wars are much more complex, involving battles over resources and not just power.

The fact that the international community is prosecuting actors involved in these complex cases represents a "huge step" for international justice.

"The world is beginning to say enough is enough."

Dquan@postmedia.com

http://www.canada.com/news/Butchers+bew ... story.html

[ICC.supporter]

theStar

UHURU, RUTO CAN STAND IN 2013 - NEW BILL

Wednesday, 30 May 2012 23:44

BY WALTER MENYA

DEPUTY Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto will not be blocked from contesting the next elections by the new Leadership and Integrity Bill, 2012.

Last night Kenya Law Reform Commission chairman Kathurima M’Inoti said the draft was not final and some proposals might change. “We have only received the draft from the Ministry of Justice. We will look at it make our suggestions then send it to the Attorney General for him to look at at as well. After that the Bill will go the Commission on Implementation of the constitution who will also do their part. There after all the relevant stakeholders will seat around the table to hammer out a final Bill that will go to Cabinet then Parliament,” said M’Inoti, "As it is the bill will only bar aspirants who have already been convicted," he confirmed.

In January former Justice minister Mutula Kilonzo indicated that the Leadership bill would prevent candidates facing serious charges from standing for elective office. He was replaced as Justice minister by Eugene Wamalwa in April.

Uhuru and Ruto want to stand for president in March 2013 but have been charged with crimes against humanity at The Hague for their alleged role in the post election violence in 2007. Another suspect Joshua arap Sang wants to stand for Governor of Trans Nzoia county. Former Civil Service head Francis Muthaura is the fourth suspect but has not declared interest in any political office.

The 104-page long bill seeks to operationalise Chapter Six of the Constitution on Leadership and Integrity. Parliament is required to enact the legislation by August 27 this year, two years after promulgation of the new constitution in 2010. Uhuru and Ruto would only be blocked from standing if they were convicted at the ICC and the appeal process had been exhausted.

“A person who has contravened the Code or has been convicted of corruption or an economic crime within the meaning of the Anti-Corruption and Economic Crimes Act, 2003 or of a serious offence shall not qualify for appointment or election to a state office, until ten years have passed since the person was released from prison for the offence, including release for good behaviour or on parole, or if not imprisoned, after the person has paid any fine imposed or completed any other penalty imposed,” Clause 12 (3) of the Bill reads.

A serious offence is defined as a felony or any other offence for which a sentence of three years or more may be imposed. Not only is a conviction necessary to block someone standing for office but it is also necessary to first exhaust the appeal process before they are barred. "A person is not disqualified unless all possibility of appeal or review of the relevant sentence or decision has been exhausted," states the draft bill, a clause that was originally introduced by MPs in Naivasha in January 2010 in a retreat on the draft constitution.

Therefore Uhuru and Ruto could be convicted in the Hague but still stand for president so long as any appeal was still pending. The Bill of Rights in the constitution ensures that all Kenyans are presumed innocent until proved guilty. Some observers have argued that if candidates facing charges were blocked from standing, the state could use that to block certain candidates by charging them with trumped up offences before elections.

Uhuru and Ruto have insisted that the ICC cases will not stop them from seeking the presidency as they remain innocent until they are convicted. They belong to the G7 Alliance who want to block Prime Minister Raila Odinga from taking over from President Kibaki who cannot stand in 2013 because he has completed his constitutionally allowed two terms. The Independent Electoral and Boundaries Commission has set March 4, 2013 as the date for the next election.

Various voters, IDPs and civil society groups went to court in January to try and block Uhuru and Ruto from standing in the next elections. They argued that the two became ineligible after the ICC confirmed charges against them on January 23. They say that Article 99 of the constitution says that a candidate cannot stand if he “is found, in accordance with any law, to have misused or abused a State office or public office or in any way to have contravened Chapter Six which deals with integrity.”

The draft Leadership Bill also bars members of professional bodies who have been deregistered from seeking any political office or public appointment. Immigration minister Otieno Kajwang might find himself barred from standing as he is among 54 advocates debarred by the Law Society of Kenya. All candidates seeking elective political positions will be required to seek clearance from EACC after declaring their income, assets and liabilities as well as those of their spouse and dependent children.

Furthermore, Clause 19 prohibits holders of public offices from running overseas bank accounts. The Bill also bars state officers from accepting monetary awards. All gifts will to have to be declared to the officer's organisation and the EACC.

http://www.the-star.co.ke/national/nati ... nd-in-2013

[ICC.supporter]

Saturday Nation

Africa

Taylor’s 50-year sentence proof wheel of justice turning in Africa

By CIUGU MWAGIRU ciugumwagiru@yahoo.co.uk
Posted Saturday, June 2 2012 at 18:02

The 50-year jail sentence imposed on former Liberian president Charles Taylor at The Hague will be a milestone that may significantly change the way the exercise of power is perceived in Africa.

Presumably Africa, a continent in which impunity still thrives, will henceforth take the ICC more seriously and will no doubt more readily sit up and listen to the court’s pronouncements.

African countries will also, hopefully, from now on review their own capacities to mete out justice.

Considering the aspersions frequently cast on African jurisdictions and the already sullied reputations of African judicial systems, pervasive doubts about their real independence are not surprising.

Further, it is not surprising that they should be tagged as sterile and mercenary, and as largely having proved to be appendages of the corrupt regimes that appoint them in the first place, and to which they are consequently beholden for their sheer survival.

African courts

Given that scenario, The Hague sentencing last Wednesday may just put paid to arguments that judicial processes similar to the Taylor one could have been carried out better by African courts.

Instead, the proceedings at The Hague can be expected to drive home the fact that the likes of Taylor can ultimately be brought to heel after years of riding rough-shod over the very people whose fundamental human rights they are supposed to safeguard.

Being the first conviction on war crime charges of a former head of state by an international court since the Nuremberg trials of Nazi leaders after World War II, the Taylor verdict was particularly poignant.

It was therefore not surprising that UN human rights chief Navi Pillay referred to it as “immensely significant,” saying it sent out a message that even the most powerful are not above the law.

“This is undoubtedly a historic moment in the development of international justice,” she said soon after the long-awaited verdict was delivered.

In a world thirsty for justice, the Taylor case evoked the earlier one against former Yugoslav President Slobodan Milosevic, who was tried by an international tribunal but died before a judgment was issued.

In the meantime, the Yugoslav war crimes tribunal recently announced that the genocide and war crimes trial of former Bosnian Serb army chief Ratco Mladic will resume on June 25.

Legal technicalities

The trial of the so-called “Butcher of Bosnia” had been adjourned indefinitely, due to some legal technicalities, a day after it opened at The Hague on May 16.

Mladic, 70, has been charged with 11 counts of war crimes, crimes against humanity and genocide allegedly committed during the 1992-1995 war in Bosnia.

As far as Africa is concerned, recent developments in the Taylor saga also appear to be signals of things to come, particularly considering that the ICC has already charged former Ivory Coast president Laurent Gbagbo with crimes against humanity.

The ICC also has a warrant out for Sudanese President Omar al-Bashir, who, so far, has been able to elude arrest.

As for the likes of Uganda’s Joseph Kony and DRC’s General Bosco Ntaganda, the elusive warlords continue to spread terror in their respective territories while for all intents and purposes thumbing their noses at ICC prosecutors out to get them.

However, doubts about whether the much-derided ICC has teeth to bite have probably already begun to evaporate as the significance of the Taylor sentence gradually sinks in.

As for Taylor, he is entitled to an appeal, but if it fails he is expected to serve out his sentence in a British jail.

His eventual and irrevocable fate after the conclusion of a lengthy trial is expected to prove the eternal truism that however much the dogs may bark, the caravan of international justice will move on.

The ICC indeed showed its determination to continue with its mission when even before the Taylor sentence it announced that the trial of four Kenyan post-election violence accused will, like the Mladic case, proceed in June.

In the meantime, after the Wednesday sentence relating specifically to Taylor’s contributions to the atrocities in Sierra Leone, new questions will arise about the prospects of ensuring justice for victims of the civil wars that raged under his watch in Liberia, the former president’s own country.

There should be even greater focus on the fate of Taylor’s conspirators during the horrendous anarchy that raged inside Liberia during the Taylor days, and which resulted in atrocities much worse than those that occurred in Sierra Leone.

Alarmingly and unbeknownst to many, some of the most notorious actors in the Liberian civil war years went on to become major actors in the country’s politics, and continue to hold public office to this day.

Darkest hours

Many of those included in the list of known terrorist warlords during the country’s darkest hours who have remained free – including people like Taylor’s erstwhile comrade, the notorious Prince Johnson – are often pointed out as the ultimate proof that impunity is alive and well in Africa.

That such people not only survived but even thrived in post-Taylor Liberia remains one of the great ironies of modern times.

That simple and intriguing reality is indeed a harrowing and stark reminder that Liberia’s victims of organised terror may not be as lucky as their Sierra Leonean counterparts as far as the pursuit of some modicum of justice is concerned.

As for Taylor, the 50-year sentence and his fate after the post-appeal conclusion of a lengthy trial will be viewed as major victory in the war against impunity in Africa and elsewhere.

http://www.nation.co.ke/News/africa/-/1 ... index.html

[ICC.supporter]

theStar

Presidential contest a two-horse race, not a battle of three princes

Friday, 01 June 2012 23:44

BY PAUL OKONG'O

RIGHT TO REPLY

Joe Adama has given comparisons on prominent families that have produced political dynasties. He writes that “In the US the Kennedy’s have produced a President, an Attorney General a Presidential candidate and a number of senators”. John Kennedy was President 1961-1963 and appointed his brother Robert Attorney General-1961-1964.Robert was later Senator from New York and Presidential Candidate until his assassination in 1968.Edward was Senator from Massachusetts upon his election in 1962 and Presidential Candidate in 1980, but lost to President Carter in the primaries. What is unique about the Kennedy s is that JFK was President, RFK was Attorney General and Edward was Senator at the same time.

My research does not support the number of senators that he talks about. He adds that “In India, it used to be the mother and son team of Indira and Rajiv Gandhi, who both became Prime Minister.” He does not include Jawaharlal Nehru-Indian Prime Minister from 1947-1964, Indira’s father and Rajiv’s grandfather. For good measure you can add, two more Presidential teams, Sir Sereste Khama and Ian Khama in Botswana (Father and son) Corazon Aquino and Beningno “Noynoy’ Aquino (Mother and son) in the Phillipines...Adama says that “On both occasions the safety valve of a runoff did not exist” I beg to disagree. In 2002/2007 a runoff was in the constitution. The Inter Party Parliamentary Group reforms of 1997 amended the constitution to factor in a runoff. Parliament and the defunct Electoral Commission factored in monies to cater for the same.

He says not since the first multiparty poll in 1992 have there been so many substantial presidential candidates . I again disagree with Adama, although this is a debatable and not factual matter, where the results and performances will attest to this. I hereby dismiss outright the candidacies of Raphael Tuju, Peter Kenneth, Martha Karua, James Ole Kiyiapi, Bifwoli Wakoli, Eugene Wamalwa and Mutava Musyimi.They are what I would call Facebook or Twitter candidates. Period. They shy away from television debates. The 70,000 followers of Karua on twitter are all not Kenyans, and the rest are not eligible voters.Facebook and Twitter do not have boundaries. For example I follow Hugo Chavez, and Barack Obama on both social sites, but I cannot vote for either because I am not Venezuelan or American.

Musalia Mudavadi is also a non-starter who belongs to this category. All Presidential candidates from Western Province have never polled more than 500,000 votes. I agree with Adama on this. Martin Shikuku and Michael Kijana Wamalwa have been candidates before-and the records are there for all to see.Mudavadi will not fair any better. Vice President Kalonzo Musyoka is a “Big name” and we know the votes he got in 2007.He has not endeared himself to Kenyans by his shuttle diplomacy on the ICC.Opinion polls show, Kenyans are for a trial at The Hague.

Kenyans know that our courts cannot try anything, and anyone, only chicken thieves. Election petition cases are concluded a few months to the next election. Let’s look at the incitement charges brought up against Dr Machage and the No team at the last referendum. Despite video evidence in what should be an open and shut case-it took forever to conclude this case.

The verdict delivered by Sharad Rao’s vetting team against Justice Omolo is a case in point. He denied Edith Matiba a chance to exercise her power of Attorney. President Moi could never be served with a petition, both in 1992 and 1997.Kibaki’s lawyer James Orengo was unable to serve President Moi with petition details in 1998.The verdict by Rao’s team justifies Raila Odinga and the ODM decision not to go to court in 2008.

The Central Kenya constituencies have never voted for anybody, other than a son of the “central soil”. In 1992 they voted for Kibaki and Matiba. Five years later they voted for Kibaki, ignoring even one Wangari Maathai who also ran.(This is one reason why they will ignore Karua). In 2002 they shared votes between Kibaki and Uhuru Kenyatta.In 2007 they voted exclusively for Mwai Kibaki.It therefore logically follows that in 2012/2013 they will go with a son of the ‘soil’. It remains to be seen how they will vote if Uhuru is not allowed to ran because of the Hague trial, however one George Saitoti is likely to benefit from this scenario. His roots are in Kiambu.

The next Presidential contest will be a two horse race, just like in 2002 and 2007.The person to beat is one Raila Amolo Odinga of the Orange Democratic Movement. The G7 alliance is aimed at this-Stop Raila at all costs. That is the game plan-just like in 2007.How will the Rift Valley vote in the event that William Ruto is not on the ballot? That vote will be up for grabs, in 2002 it went to Uhuru and in 2007 it went to Arap Mibei (Raila Odinga).It is likely that it will still go to Odinga.

Adama goes on to say that” Both Kibaki and Raila garnered upwards of Five million votes each” This is incorrect.Kibaki got about 4.5 million and Raila attained 4.3 million votes according to Official ECK Results. He also says that’Uhuru then unlike now, did not have Kikuyu goodwill whatever behind him”‘Any of the three other candidates could have beaten Kibaki to the Moi succession with Raila’s endorsement-Kalonzo, Simeon Nyachae and George Saitoti”

In the 2002 Elections, Uhuru did have Kikuyu goodwill behind him-not all but substantial. In Kiambu the votes went to him. The likes of Njoroge Mungai, Kihika Kimani, and Njenga Karume joined his campaign.Uhuru and KANU received substantial votes in Kiambu and parts of the Kikuyu Diaspora.KANU went into the 2003 Parliament with 64 Seats, mostly from the Kalenjin-Moi strongholds and parts of Central Kenya.

The “Kibaki Tosha” call was meant to split the Kikuyu vote. Any other “Tosha’ would have rallied the entire Central Kenya, Kikuyu Diaspora and Meru, Embu votes behind Uhuru Kenyatta.Then again look at voting trends in Gusii-Nyachae’s backyard-55-68% turnout. Remember in 2002 Uhuru polled 1.8 million votes and received 25% in at least 5 provinces-which was a constitutional requirement. Again the Kalenjin of the Rift Valley have always put in at least 90% and more since resumption of Multi-Party in 1992.In 2002-the election was about tally. Kalonzo, Nyachae, or Wamalwa would never have beaten Uhuru backed by Moi and by extension the State machinery.

Money matters, but not all the time. Money in Kenyan Politics is/will be for logistics and nothing else. In 2002, Kenyans rejected Uhuru Kenyatta and Daniel arap Moi with all the resources they could master. Money and all the razzmatazz raised at the launch of TNA will not translate into votes. In 2002 he did carry the baggage of KANU and his backers. That is the reason for the defection from the Independence party KANU to the new TNA.

He has shed that baggage, but carries a new one-The Post election violence of 2007-2008.Everybody is innocent until proven guilty; however Kenyans were killed, maimed and lost property in the violence. Somebody somewhere is responsible for it. To quote Mutula Kilonzo-“If you are accused of crimes against humanity, you have no right to offer yourself to lead the same humanity. If that is not common sense, then I do not what is.”

http://www.the-star.co.ke/weekend/siasa ... ee-princes

[ICC.supporter]

Saturday Nation

Politics

Mutunga’s court could decide the fate of Uhuru and Ruto

By KIPCHUMBA SOME ksome@ke.nationmedia.com
Posted Saturday, June 2 2012 at 22:30

Chief Justice Willy Mutunga’s Supreme Court looms large as the last and most formidable obstacle in the path of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto’s presidential aspirations following the rejection of their final appeal in The Hague last week.

Much attention in the debate on whether the two, who face crimes against humanity charges at the International Criminal Court (ICC), can run in the next General Election has focused on events in the international arena. Read (Ruto denies political alliance with Uhuru)

But the pair’s biggest challenge will be to convince Kenya’s reforming judiciary that they – and many other politicians with integrity questions hanging over their heads – can contest seats in the light of the high bar set by the Constitution.

And it is a fight that will greatly test the mettle of the revamped judiciary and in particular that of Dr Mutunga who has already warned politicians of questionable integrity against offering themselves for leadership positions.

Last week the four suspects, Mr Kenyatta, Mr Ruto, former head of public service Francis Muthaura and radio journalist Joshua arap Sang, lost their appeal challenging the jurisdiction of the ICC to hear their cases.

The decision paves the way for the start of their trials because they have now exhausted all avenues of stopping their cases from proceeding.

The last remaining option is for the government to obtain a deferral at the United Nations Security Council or for the government to set up a local tribunal that would satisfy the ICC that it is capable of serving justice, forcing it to suspend trial at The Hague.

The suspects are set to attend a status conference slated for June 11 and 12 in which, among other things, the date for the start of their trials will be discussed and rules of engagement set.

Despite the millstones around their necks, Mr Kenyatta and Mr Ruto have continued laying elaborate campaign plans in their bid to succeed President Kibaki.

The ICC has stated that it has no jurisdiction to determine whether the two suspects can vie for the presidency, therefore leaving the matter to local courts.

Given a recent surge in public-interest litigation driven by newfound belief in the judiciary, it is inevitable interested groups will seek to have the two barred from running.

One such case is already under way. Mr Patrick Njuguna, Mr Agostinho Neto, Mr Charles Omanga, the Kenya Youth Parliament, and Kenya Youth League went to court earlier this year seeking to bar the two from running for president.

It is envisaged that many more similar cases will be filed by other interested groups and that the matter might end up in the highest court in the land, the Supreme Court, where Dr Mutunga sits as its president.

“This is an obviously interesting issue for many interested groups,” said international law expert Dr Kithure Kindiki. “It will definitely be fought very passionately and very hard every inch of the way, up to the highest court.”

All eyes now will focus on Dr Mutunga who will be mandated to set up the benches that will hear the case at different stages as it winds up the legal system, perhaps up to the very top where he will sit with six other colleagues to make the historic ruling.

In March, Dr Mutunga issued a warning that must have rung alarm bells in the political arena by declaring that he will not hesitate to use Chapter Six of the Constitution on Leadership and Integrity to prevent politicians of questionable integrity from seeking elective office in the General Election.

“Being Kenyan is a full-time commitment. This country needs citizens who are Kenyans all the time; not those who are vernacular Kenyans most of the time. Just in case you forgot, Chapter Six is partly intended to eliminate this breed,” the CJ said.

The Supreme Court judges are Dr Mutunga, his deputy Lady Justice Nancy Baraza who is currently suspended, Justice Philip Tunoi, Justice Jackton Boma Ojwang’, Justice Mohamed Ibrahim, Justice Smokin Wanjala and Lady Justice Njoki Ndung’u.

Ms Baraza’s suspension, however, places the court in a tricky position should a matter be brought before it urgently due to the even number of judges. They ought to be an odd number to prevent the possibility of a tie when delivering a ruling.

In the US, the Supreme Court has played a crucial role in shaping national values through its judgment on weighty national issues such as the legality of abortion and ending of racial segregation in public schools.

There, the Supreme Court judges are closely scrutinised for their professional and personal opinions on key issues of the day and are consequently categorised conservatives or liberals.

“It might be too premature to start categorising our judges in this fashion since we have little information about their stand on several issues,” said Dr Kindiki.

Chapter Six of the Constitution requires, among other standards, that State officers must not have behaved in a manner, “demeaning the office the officer holds” and must bring “honour to the nation and dignity to the office” they hold.

Clause 35 of the proposed Leadership and Integrity Bill states: “A person seeking to be appointed or elected as a State officer may not be eligible for appointment or to stand for election to such office if that person has, as a State officer, contravened the Leadership and Integrity Code under this Act or, while serving as a public officer, has contravened a Code of Ethics and Integrity applicable to that officer”.

Although still undergoing drafting the Bill, as it is, cannot bar anyone who is seeking the presidency from running, but only those who have been convicted.

The Leadership and Integrity Bill also empowers the Ethics and Anti-Corruption Commission to bar those seeking to be elected or appointed to office if they have contravened the law.

“These bodies (including the Independent Electoral and Boundaries Commission) will be required to make their decisions regarding the matter even before it goes to court and it is important to see how they will decide,” said lawyer George Kegoro.

Clause 43(1) of the Bill reads: “The Ethics and Anti-Corruption Commission and the responsible commission may, on application by any person, issue a certificate to that person or any other interested person or institution, confirming that a particular State officer is compliant or not compliant with some or all of the provisions of Chapter Six of the Constitution or this Act.”

While saying that there is little in law that bars the two from running because of a clause in the Constitution which requires that a suspect should have exhausted all options of appeal to be barred from seeking office, Dr Kindiki said that the suspects run the risk of being impeached immediately after being sworn into office.

“The Constitution demands that the Senate start impeachment proceedings against the President and his deputy if there are reasonable grounds to believe that they have committed a crime under national and international law. And if the Senate refuses to do so, then any one can petition the courts to do so,” he explained.

However, Mr Kegoro said that such a move might take a while until a ruling is made by the ICC and all appeals exhausted.

“I don’t think the decision will be made in such a short time, going by past examples of how long it has taken the court to deliver a judgment,” he said.

http://www.nation.co.ke/News/politics/M ... index.html

[Terminator]

I am trying to guess which of these judges is likely to side with the suspects or the weakened integrity act. I can't seem to come up with any. They will likely just rule on the basis of the constitution.

The Supreme Court judges are Dr Mutunga, his deputy Lady Justice Nancy Baraza who is currently suspended, Justice Philip Tunoi, Justice Jackton Boma Ojwang’, Justice Mohamed Ibrahim, Justice Smokin Wanjala and Lady Justice Njoki Ndung’u.

The current draft of the integrity act, a brainchild of Eunice Wamalwa, says the person should have exhausted all avenues of appeal before they can be barred. So if you are convicted of murder, you can still run for office while you exhaust your appeal according to this logic. This appears to be a transparent attempt to lower the bar for the suspects. It has to be the most unique integrity act known to man.

I know it is a bar that the Supreme Court certainly does not care about, following its own suspension of Nancy Baraza after the nose-pinching incident; she has not even been charged, let alone convicted. In any case, the constitution is clear on the issue in the very first clause of Chapter Six. Rivers of tears will be shed the day the supreme is asked to look at the issue.

[ICC.supporter]

I would be very nervous about Baraza returning to the court. I think if she does, her secret agenda would be to frustrate Mutunga. Just my guess.

[ICC.supporter]

Capital FM

Who Are the Dogs in TNA Colours

By Ngunjiri Wambugu, 3 June 2012

opinion

This last weekend I was in my home county Nyeri and had a chance to visit with several friends during the long Madaraka Weekend. Of course the primary question I had to answer is what comes after the highly successful Limuru 2B, as well as what is my relation to the eagerly awaited Mkenya Solidarity party to be launched this coming weekend. (This I will discuss next week).

However a social discussion that I encountered everywhere was on comments attributed to Hon Lewis Nguyais in Ol Karau a week ago. The honorable Member of Parliament from Kikuyu is quoted as saying that The National Alliance (TNA) would rather support dogs wearing TNA colours, than work in a coalition with other parties in Central province. Media reports say that according to Nguyai TNA would prefer dogs that will do as they are told (in Parliament) rather than independent thinkers who might not be reliable in doing what they are told.

Interestingly these comments eerily mirror statements once attributed to Hon Nguyai's late father Hon Amos Nganga. Hon Nganga was an MP in the same constituency as his son and was also an Assistant Minister during President Jomo Kenyattas government. During the Kikuyu oathing sessions of 1969 Hon Nganga is quoted as having said that any Kikuyu who refused to take the oath binding himself to President Kenyatta would be eaten by the rabid dogs. These dogs were popularly referred to as T9 and some mischievous fellows conversant with this history have now taken to referring to the TNA party as T9!

As is to be expected TNA national officials have said these were unfortunate comments from Hon Nguyai. Unfortunately the silence from their party boss has led to Hon Kiunjuri saying that Hon Nguyai could very well have been speaking on behalf of his boss. Government of National Unity (GNU) party officials have stated that they do not intend to close shop for anyone. The Democratic Party and Alliance Party of Kenya have also come out strongly to condemn TNAs attempts to bully others into their party. Even Farmers Party has condemned these comments. Several young aspirants who do not belong to TNA across Central Kenya region have also held press conferences asking TNA to tell them who their dog is in each constituency or county!

Personally I must say I am impressed that we still have a few politicians in the Mt Kenya region able to stand up to a party associated with the regions preferred presidential candidate, and tell them off for trying to bully the entire region. Maybe there is still a chance that our leaders will remember that they were elected to represent the interests of ordinary voters in parliament, rather than represent and defend the interests of a fellow MP, whoever they might be.

Incidentally all those spreading the message that all of Central Kenya must get into one bus as the only way 'one of our own' will become president must realize that it has never happened that way. When Mwai Kibaki was running for President in 2002 it was against candidates that included Uhuru Kenyatta; and Kibaki still won by a landslide. On the two occasions that a Kikuyu has become President his chief lieutenants have been from other communities rather than his tribes men, and the candidate was more popular outside his community than within. TNA should also remember that President Kibaki defended his seat under a conglomerate of parties and won. I doubt he would have won if he had bullied all Central Kenya MPs into one 'bus'.

More specifically the Kiambu political elite behind these tactics must be reminded of the amount of trouble they got the entire GEMA region into the last time they tried to bully us to support their political position. At the time they were trying to circumvent the constitution of Kenya to stop Daniel Moi from ascending to the Presidency. They did not succeed. However as thecommunity came out as a united opponent to Mois government for the entire 24 years of his rule, suffering great political and economic marginalization in the hands of a President who felt this resistance; this small clique quickly jumped ship and changed political colors immediately Moi became President. They became his primary supporters and individually benefited from his presidency, with no interest on the tribulations of their co-tribesmen. This must not be allowed to happen again.

Finally, all politicians must accept that Kenyan politics has changed. Today it is the interests of the voter, rather than the interests of the politician, that determine the position communities will take. Unlike several politicians, not many voters think in terms of loosing their land or government contracts under the wrong president; their reasons for supporting a particular politician are actually quite simple; will you continue the socio-political and economic advancements we have witnessed under President Kibaki, or compromise them? Will you respect democratic space, or curtail it? What do you have to offer the majority poor and unemployed youth?

http://allafrica.com/stories/201206040045.html

[ICC.supporter]

theStar

HOW TOP MUNGIKI MAN WAS ELIMINATED

Sunday, 03 June 2012 23:43

BY STAR REPORTER

The Mungiki leader named by the International Criminal Court as having attended a meeting at State House to plan the Naivasha revenge attacks in the 2007-08 post-election violence was lured to his death by a top government official who called him to a Nairobi hotel to collect money. Joseph Maina Kang'ethe aka Maina Diambo is mentioned in the ICC case against Deputy Prime Minister Uhuru Kenyatta and former Secretary to the Cabinet Francis Muthaura.

The details of the November 26, 2007 State House meeting were laid bare during the ICC confirmation of charges last year. Diambo dropped out of school in class seven at Nguruweini Primary school in Kandara, Muranga. He did menial jobs before trying his hand at managing matatu fleets in Dandora, Nairobi. He later joined the Mungiki and rose to positions of influence, coordinating the sect's activities in Nairobi. He was the only son of Mary Muthoni Kang'ethe.

Close family members yesterday revealed that Diambo and two of his Mungiki colleagues were on July 6, 2008 called by a top government official to collect Sh3 million donation for the burial of then Mungiki leader Maina Njenga's wife Virginia Nyakio. Nyakio together with her bodyguard and driver had been killed in mysterious circumstances in March 8, 2008 and their bodies recovered in Gakoe forest in Gatundu.

According to sources, who requested for anonymity, the day before Diambo disappeared he had received the first donation from the same politician at a government office. The money was allegedly in a briefcase. Diambo was accompanied to the the first meeting by the Wagacha brothers — Charles Ndungu Wagacha and George Njoroge Wagacha — who were later murdered in Mai Mahiu.

At the meeting they allegedly received Sh3 million, which they were to deliver to Njenga, then incarcerated at Naivasha Maximum Security Prison. The Wagacha brothers, who were aides of Njenga together with another man identified as Naftaly Irungu, were shot dead as they drove to Naivasha on April 29, 2008. The following day, Diambo received a phone call asking him to go to a Nairobi hotel and meet the contact to collect another tranche of cash.

According to those close to Diambo, he was at the City Bus Station area when he received the call for the urgent meeting. The 43-year-old immediately headed to the hotel alone and was never seen again. Diambo's wife reported his disappearance to Nairobi's Central Police Station. Diambo was said to have been very a close associate of Njenga. Njenga is now a born-again Christian and runs the church Hope International Ministries in Nairobi. At the time Njenga was in jail, Diambo ran the Mungiki gang.

Around the same time, another key operative in Central Province, Alfred Peter Njoroge, went missing never to be found. Njoroge who had earlier been arrested and charged in connection with hate leaftlets that were spread in Muranga town in 2007, went missing on April 22. Njoroges’ wife Rigidia Njoki said the 38-year–old father of three was arrested by a gang in Marurui, Nairobi, as he drove to Komarock where he worked as land broker. The matter was reported to Kasarani Police Station.

Anthony Mwangi alias Norieng, another Mungiki adherent, also went mission on April 12, 2008 and is yet to be traced. The 34 year-old father of three went missing hours after he was released from a Thika court where he was charged with touting. His wife Margaret Wambui said she reported to Thika police that her husband was arrested by police officers minutes after he was released from the courts. Wambui said her husband together with four other young men were picked up by Thika police from his farm in Kiandutu on April 11. His body is yet to be found.

Sources in the sect said Norieng was an active Mungiki member and a key organiser in Central Kenya. According to the ICC prosecutor, Diambo attended the State House meeting together with two other individuals. In the confirmation of charges verdict, the ICC judges said that in the meeting were then State House Comptroller Hyslop Ipu, Presidential Press Service head Isaya Kabira, official Stanley Murage, Uhuru and Muthaura.

Muthaura reportedly introduced the Mungiki as "youth" and a sect representative then presented their demands on behalf of Maina Njenga, who was then in jail, in exchange for the sect's support for President Kibaki. “After hearing the Mungiki demands, the President addressed Mr Muthaura telling him something to the effect of: “You have heard what the youth want, so now it is upon you,” the judges quoted a witness as saying. State House has since denied that Mungiki attended any meeting there. Some of the youth who attended the meeting have publicly claimed that they were not Mungiki.

In January 2008 another payment of Sh20 million was allegedly taken to Njenga in prison by Diambo and two other individuals whose names were redacted (blacked out) in the ICC prosecution report. The witness said that it was after receiving this money that the Mungiki carried out attacks in Naivasha. Njenga was released from jail where he was on a five-year term for illegal possession of a firearm in 2009, nearly two years after the post-election violence.

http://www.the-star.co.ke/national/nati ... t-official

[ICC.supporter]

theStar

Political parties act: After compliance then what?

Sunday, 03 June 2012 23:47

Joseph M. Mathai

Political Parties Act: After compliance then what?

Since independence, political parties have merely been vehicles for propelling politicians to win elective office. This has often led to personality cult within political parties with most having no ideology.

At independence a semblance of ideology was exhibited by the parties of the moment at the time, KANU and KADU. While KANU espoused a unitary state based on an executive president, KADU espoused a regional or federal like government, the so-called Majimbo, with powers devolved to the regions then represented by the former eight provinces of Kenya. KADU’s main fear was domination of the larger ethnic groups which supported KANU, over the smaller ones which supported KADU. Kenyatta and his KANU party however were able to convince KADU to drop their demand and join a unitary state.

Since then, a lot has happened in the political parties’ scene with Kenya becoming a de jure one party state in 1982. KANU was to dominate politics with president Moi lording over Kenyan politics like a colossus until the 1991 when Kenya reverted to multi-partyism. With KANU becoming baba na mama, party politics in Kenya were to be altered until now.

The KANU hegemony, it can be argued, has over the years influenced the behavior of political parties in Kenya even with widened democratic space in the multiparty era of the last close to two decades. Parties have always tended to coalesce around certain political personalities whimsical thinking, wealth, tribe, mannerism, etc, other than being based on stated ideological principles.

The Political Parties Act 2011 and the new constitution will forever change how political parties will behave and be managed. Briefcase political parties will for one be things of the past as will be individual control over political parties. The Political Parties Act gives the Registrar of Political parties wide powers that influence the way the parties will be run.

All parties as per the act had to seek fresh registration by April 30 2012 failure to which they risked deregistration. They are to meet the following:

Have at least 1000 registered members in at least half (24) of the 47
counties,

Have regional and ethnic balance in its membership and the governing body,

Exhibit gender balance, not more than two thirds of the governing body shall
be of the same gender,

Members of the governing must meet the requirements of Chapter Six of the
constitution on Ethics and Integrity,

Must submit to the registrar: a list of its members, their addresses and
identification particulars, location and addresses of its headquarters and
branch offices and an undertaking that it will abide by the code of conduct
of political parties.

It is no secret that funding of political parties has been the main reason they have been associated with individuals of means. This is bound to end because political parties have to declare their sources of funding and maintain proper audited accounts on the sources and the expenditure thereof. Failure to comply will risk sanctions including suspension or deregistration by the registrar of political parties. The gravy train for hangers on in political parties may be over with the new law.

With all said and done, the devil as the say is in the details. Will all the political parties that have complied with the act make a difference in Kenyan politics?

How many will have “at least 5% votes in the preceding elections” to qualify for the Political Parties Fund? Better still, how many will maintain the “not more than two third of the same gender” rule to qualify for the fund?

How many of these parties will genuinely declare their sources of funds bearing in mind that no individual or one particular source can contribute more than 5% of expenditure of the party as stated in its audited accounts of the previous financial year?

How will they survive the freeze on non-citizen and foreign donations? In the past there have been the perpetual allegations of political parties “serving their foreign masters”. All these and much more are questions that will only be vindicated by the passage of time.

Looking at the bigger picture though, the beneficiary is the Kenyan citizen. As argued in this column before the new constitution and legislations thereof heralds a new epoch in Kenya’s political culture, socialization and thinking. Never again shall the electorate be beholden to particular individuals but the ideologies put forward by the parties or independent candidates presenting themselves for election.

With better management and regulation of political parties, we could whittle political arrangements which call themselves parties down to three or four major genuine parties. The law would wipe out ethnic based politics by making a party attractive to all and sundry. Many a party will also die by natural attrition as a result of the new law. But time will tell.

Joseph M. Mathai

Consultant : Management of political Parties

http://www.the-star.co.ke/opinions/othe ... -then-what

[ICC.supporter]

Capital News FM

Ocampo 4 trial dates to be known next week

Posted by JUDIE KABERIA on June 5, 2012

NAIROBI, Kenya, Jun 5 – The four Kenyans accused of crimes at the International Criminal Court (ICC) were on Tuesday getting ready to travel to The Hague for the status conference to be held next Monday and Tuesday.

Joshua arap Sang told Capital FM News that he will travel on Saturday together with his three lawyers.

“We are waiting for the visas. I am going Saturday. We are going with my three lawyers Philemon Koech, Joel Bosek and Katwa Kigen,” he asserted.

William Ruto’s lawyer Kioko Kilukumi said together with the rest of his team will also travel to The Hague to attend Monday’s conference which will determine trial dates for the suspects. However he did not confirm if he his client will travel to Netherlands for the conference or not.

“On 11th definitely we will be there. I applied for a visa, God willing everything will go as per our plan,” he said.

The two who will attend their conference on Monday confirmed to Capital FM News that they had applied for their visas and were waiting for the clearance from the Dutch Embassy.

Ken Ogetto who is part of a legal team representing former Head of the Civil Service Francis Muthaura is also set to leave for The Hague this Saturday, in time for the status conference for Case II which will be held on Tuesday.

“I am finalising plans and I will be leaving this Saturday. Everything is set. There is no problem at all,” Ogetto said.

Sources have told Capital FM News that lawyers of Deputy Prime Minister Uhuru Kenyatta are also finalising travel arrangements but it is not clear if Kenyatta and Muthaura will attend the status conference.

The ICC has previously clarified that it is not mandatory for the suspects to make appearances in The Hague during the status conference as long as they have legal representation.

The defence teams, the prosecution, victims’ legal representatives and the registry have made their submissions to the Trial Chamber V as requested.

Apart from setting the date of trials, the status conference will also set the timelines and format of disclosing evidence including witnesses that will require protection.

The prosecution indicated it will require one year to present its evidence while defence teams of Ruto and Sang said they will require each four months to prepare for their defence after.

Kenyatta and Muthaura did not give any time estimates they will require explaining that it depended on the evidence that will be presented against them.

http://www.capitalfm.co.ke/news/2012/06 ... next-week/

[ICC.supporter]

theStar

ICC victims lawyer asks for payment

Monday, 04 June 2012 23:44

BY NZAU MUSAU

A lawyer representing victims in the ICC case against Eldoret North MP William Ruto has written to the trial chamber asking to be paid the money she needs to meet with her clients in Kenya. Lawyer Sureta Chana has now written to the trial chamber presided by Kuniko Ozaki asking it to order the registrar to pay her dues. Chana who has been battling with registrar of the court Silvana Arbia over funding of trips to Kenya claims she has not been paid since March 26.

She is also accusing the registrar of micromanaging her, hindering her representation work and taking her for granted. Chana says the registrar has also stopped paying her team of assistants. “The victims' representative informs the Chamber that she, as well as her legal assistant and case manager have volunteered time to write extensive letters to the Registry as well as the present filing, among other matters. Neither the victims' representative nor any of the team members have received any remuneration since 26 March 2012,” she said in her application made last Friday.

Chana's trouble with the registrar began in February this year after the confirmation of charges decision was issued. She sought the court's funding to travel to Kenya and explain the significance of the ruling to her 327 clients. Her request for the Sh1.4 million budget for the trip was slashed to Sh220,000. The decision to slash the amount was done after she had already arrived in Kenya. The registrar later explained that her mandate ended with the confirmation decision.

Chana sought the pretrial chamber's intervention which however sided with the registrar. She appealed the pretrial chamber's decision and won. The appeals chamber said she could continue representing victims until the trial chamber appoints a new lawyer. Following the ruling, Chana applied afresh for funding to travel to Kenya on May 7th. She said she wanted to consult her clients in preparation for the status conference to be held on June 11th and 12th.

In her filing to the trial chamber, she says the registrar delayed in responding to her and inconvenienced her ability to meet a May 28 deadline to submit observations. “For the Registry to wait two weeks, and to then respond with a request for detailed information as to the minutiae of each of the individual proposed activities, amounts to a failure to respect the duties of counsel,” she told the chamber.

Further, she says the registrar sought information which could only be shared between lawyers and their clients. She wants the chamber to find that the registrar abused her discretion by refusing to fund her engagement with the victims who are her clients. Chana pleads with the chamber not to take back the matter to the registrar because she fears it will be delayed once again.

Instead, she wants the trial chamber to order the registrar to pay her in the same terms she was being paid during the confirmation of charges phase of the case. Chana was appointed by the court in August last year to represent victims of post election violence in the case against Ruto and radio presenter Joshua arap Sang. Also appointed with her was Morris Anyah who is representing other victims in the case against deputy Prime Minister Uhuru Kenyatta and former Civil Service boss Francis Muthaura.

http://www.the-star.co.ke/national/nati ... or-payment

[ICC.supporter]

Toronto Star

International Criminal Court prosecutor reaches end of his term with mixed record

By Olivia Ward
Foreign Affairs Reporter

Stories of traumatized Darfur refugees have filled the media for nearly a decade. But the Sudanese officials accused of directing atrocities in the country’s embattled western region are still at large, and international justice has been thwarted.

On Tuesday, International Criminal Court chief prosecutor Luis Moreno-Ocampo told the UN Security Council that after years of investigation and four indictments, it was time to find new ways to arrest the high-profile suspects, including Sudanese President Omar al-Bashir. He asked the council to consider asking all countries and regional organizations to carry out the arrests.

For the ebullient Argentine prosecutor, it was an exit line of frustration: the last report he would table at the world body before leaving his nine-year term later this month.

The court does not have a police force to arrest those it indicts, and countries that haven’t signed on to the court aren’t required to make arrests.

The report also underscored the problems Moreno-Ocampo has faced, and for some, signalled that his legacy could be a checkered one.

“With all the criticism, the controversy, and his love of media attention, what he has brought to the role is an excellent example of what the court’s first prosecutor should have done,” says William Pace, head of the World Federalist Movement-Institute for Global Policy, and a prominent campaigner for the ICC. “I think that kind of strident, dramatic, forceful and passionate commitment was needed for dealing with the worst crimes in international law.”

Related:The Star’s Q&A with Luis Moreno-Ocampo

Some are less enthusiastic. Moreno-Ocampo’s critics have accused him of overreach, in indicting well-known figures before the spadework of prosecution was done. Others say his high-profile style — such as publicly indicting Bashir — overheated volatile political scenes, and made it more difficult to make arrests.

Conservative critics complain that nearly a decade of operations, and a multi-million-dollar budget, have yielded only two convictions: Congolese warlord Thomas Lubanga for using child soldiers, and former Liberian president Charles Taylor for rape, murder, sexual slavery and other crimes.

The court is currently investigating suspects in seven countries — the Democratic Republic of Congo, Northern Uganda, Sudan’s Darfur region, Central African Republic, Kenya, Libya and Ivory Coast — fuelling criticism that the ICC is a vehicle for prosecuting African countries. It is also holding “preliminary investigations” into alleged crimes involving Nigeria, Honduras and North Korea.

“The main thing to remember is that being the ICC prosecutor is an impossible job,” says Richard Dicker, director of the international justice program at Human Rights Watch in New York. “You can be blamed for things that are not under your control.”

The predominance of African countries on the court’s casebook has to do with the straitjacket placed on the court by its charter. Only the 120 countries that have signed up to the court can be investigated, and then only if they ask the court to intervene, or are unwilling or unable to prosecute their citizens.

The Security Council may refer cases to the court — as it did with Saif al-Islam Gadhafi, the deposed Libyan leader’s son — but only if all five of its veto-bearing permanent members agree.

Russia, China and the U.S. are not members of the court, and strategically shield certain allies (Syria, Sri Lanka and Israel, respectively) from prosecution. That largely leaves African countries that have endorsed the court, and in some cases asked for its help in bringing suspects to the dock.

Moreno-Ocampo has also been criticized for his choices of targets for investigation.

“A case in point is Libya, where Human Rights Watch has documented serious abuses by militias, not just the (Gadhafi) government,” says Dicker. “We’ve heard very little from the prosecutor on this.

“In Kenya he has charged both sides. But in Uganda, Congo, Central African Republic and Côte d’Ivoire, his policy creates the appearance of selectivity, or even victor’s justice.”

Born in Buenos Aires, Moreno-Ocampo worked his way up from law clerk to an aggressive young prosecutor who helped to put away nine generals who played a role in the disappearance of some 30,000 Argentines. He prosecuted corruption cases, and defended suspects in controversial criminal trials.

But his charismatic image and high public profile won him international notice, and a job at the apex of the world’s top human rights court, where he has become a symbol of the struggle against impunity. During Moreno-Ocampo’s term, the number of countries signing onto the court has doubled.

“The court has made an extraordinary contribution,” says Pace. “It replaces war and violence with the rule of law. Moreno-Ocampo has achieved that. The court is the world’s address for international justice.”

http://www.thestar.com/news/world/artic ... xed-record

[ICC.supporter]

Capital FM News

Kenya: ICC Again Rejects State Plea for Ocampo Four Evidence

By Judie Kaberia, 6 June 2012

Nairobi, Kenya — The International Criminal Court (ICC) has once again refused to furnish Kenya with evidence it has against the four Kenyans accused of crimes against humanity.

In a decision issued by the Pre Trial Chamber II, presiding judge Ekaterina Trendafilova said the reasons given by Kenya to appeal were irrelevant to the court.

"The chamber hereby rejects the application and orders the registrar to notify this decision to the Government of the Republic of Kenya," Trendafilova ruled.

On July 24, 2011 Kenya lodged an application directly to the Appeals Chamber after the Pre Trial Chamber refused to give it the investigation materials.

It again requested for leave to appeal from the Pre Trial Chamber on July, 4 which was also rejected.

Kenya based its reasons to appeal on "error of fact in holding that the cooperation request lacked any documentary proof that there is or has been an investigation."

It also argued that there was an 'error of procedure by not allowing the Government of Kenya to reply to the Prosecutor's response to the movement of Kenya's cooperation request of 10 May 2011' and further complained to the court that there was an 'error of law in holding that the Chamber could not order the Prosecutor to provide any material or evidence in his possession to a State pursuant to a request under Article 93(10).5."

However, Judge Hans-Peter Kaul, Judge Cuno Tarfusser and Trendafilova rejected the appeal explaining that whether Kenya did local investigations or not, it will not affect the ICC investigations against Uhuru Kenyatta, William Ruto, Francis Muthaura and Joshua arap Sang.

"The Chamber considers that the reference to "proceedings" in the context of article 82(l) (d) of the Statute aims only at the judicial process before the Court. Given that the subject-matter of the decision on the cooperation request concerns national proceedings and that the issues allegedly amounting from this decision subject to appeal also relate to domestic activities, the Chamber is of the view that "issue(s)" of such a nature would not affect the fair or expeditious conduct of the proceedings or the outcome of the trial before the Court as required by article 82(l) (d). Accordingly, the Chamber finds no need to either address in any detail the requirements under article 82(l) (d) of the Statute or engage with the merits of the Application," the judges ruled.

This means Kenya will not obtain the materials from the ICC prosecution which it explained it required to open a local trial for the Kenyan suspects.

Kenya made the first attempt in April, 2011 when it requested for statements, documents and other types of evidence obtained by ICC prosecutor during investigations into the post election violence including the four accused together with Henry Kosgey and Hussein Ali who were cleared by the court on January, 23 this year.

http://allafrica.com/stories/201206060665.html

[ICC.supporter]

Voice of America

News / Africa

Malawi Ready to Arrest Sudan's Bashir If he Comes for Summit

Gabe Joselow

June 05, 2012

NAIROBI - A Malawian newspaper says authorities are prepared to arrest Sudanese President Omar al-Bashir if he visits the country next month for an African Union summit. Malawi President Joyce Banda reportedly told a British development official that her country would comply with an International Criminal Court warrant against the Sudanese leader.

In an interview with the Nation newspaper, British Secretary for International Development Andrew Mitchell said President Joyce Banda made it clear if Bashir comes to Malawi, he will be arrested.

Mitchell reportedly told the newspaper Britain supports that decision.

Bashir is wanted by the International Criminal Court to face charges of war crimes, crimes against humanity and acts of genocide allegedly committed in the Darfur region of Sudan.

His visit to Malawi for a regional summit last year drew international criticism from countries including Britain and the United States, as well as rights organizations such as Amnesty International.

University of Malawi political science lecturer Mustapha Hussein says Banda's decision to ban Bashir could help improve the country's human-rights reputation.

“I think that it is a courageous move," Hussein stated. "But also desirable in the context of Malawi, so that it sheds off the image it had prior to this.”

Banda has also said she fears the economic implications of a Bashir visit.

A U.S. government development program froze $350 million in aid to Malawi last year because of the country's poor governance record under the late President Bingu wa Mutharika. A statement from the Millennium Challenge Corporation Board of Directors specifically cited concerns about the decision not to arrest Bashir.

If Banda's threats prevent the Sudanese president from visiting, Hussein says Malawi and Sudan still must find a way to continue working together.

“Definitely it [Malawi] will want to maintain its good relations with Sudan, so the only way is to try the diplomatic means or involve other key regional powers to convince al-Bashir not to attend, and instead send a representative,” said Hussein.

States that have ratified the Rome Statute establishing the ICC are obligated to cooperate with the court. Malawi is a party to the statute, but Sudan is not.

At least two other African nations, South Africa and Zambia, have promised to arrest the Sudanese president if he tries to visits. Countries that Bashir has visited since the ICC warrant was issued include Kenya, China, Chad, Djibouti, Libya, and Egypt.

Lameck Masina contributed to this report from Blantyre, Malawi

http://www.voanews.com/content/malawi-r ... 78624.html

[ICC.supporter]

Standard Digital

ICC amends agenda for Status Conference

June 6, 2012

By Alex Ndegwa

International Criminal Court’s Trial Chamber has amended agenda for Status Conference scheduled next week with the trial unlikely to begin until after September.

Trial Chamber V is scheduled to hold a Status Conference for the two Kenya cases on June 11 and June 12 during which parties will agree on the date of the trial and other procedural issues.

The proceedings will have two public sessions: one from 11am to 1pm and another from 2.30pm to 4.30pm. To avoid disclosure of sensitive information regarding witness protection, an ex parte session involving the prosecution and registry will be held separately.

The amended ten-point agenda for the preparatory hearing in the cases involving Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Head of Civil Service Francis Muthaura and journalist Joshua Sang was released on Wednesday evening.

A ruling by the Chamber on an anticipated application by prosecution on the permissible scope of witness preparation is due in September, suggesting the trial is unlikely to begin until then.

organisational policy

“The prosecution is requested to file its written submissions on the issue not later than 13 August. The defence for each of the accused and legal representative of victims will thereafter have 21 days to respond to such submissions,” the judges said.

An application by Muthaura to compel the prosecution to produce signed statements of the witnesses it intends to call has similar timelines.

Muthaura’s lawyers were directed to file an application setting out their position on the matter not later than August 13.

The prosecution and the legal representative of victims will then have 21 days to respond to that application. Other issues to be argued at the conference include whether the prosecution should file an amended document containing the charges.

Whether the parties and participants should be required to file written submissions on the legal definition of “organisational policy” and whether the Chamber should rule on definition prior to the commencement of the trial.

The prosecution’s submissions regarding the issue of protection of witnesses and the prosecution’s proposed “rolling disclosure” approach to disclosure of the identities of witnesses.

Timing, volume and format of disclosure of evidence by the prosecution and the prosecution’s proposal to adopt a new system for authorising and reviewing redactions to disclosed materials will also feature.

http://www.standardmedia.co.ke/?article ... Conference

[ICC.supporter]

theStar

ICC TRIALS TO START IN SEPTEMBER

Wednesday, 06 June 2012 23:44

BY STAR TEAM

TRIALS of the Ocampo Four at the Hague are likely to start in September. The ICC prosecutor's office has advised witnesses to be ready for the trials from September. They have been told to be on standby to begin testifying either in the month of September or latest October. The key witnesses have also been asked to indicate how they want to give their evidence. “We have been informed that trial will begin exactly three month after the status conference. We have also been put on notice that we will be required to testify either publicly or in secret”, said one witness who is under protection outside Africa.

Yesterday ICC's outreach coordinator for Kenya Mariah Kamara said "no decision has been made up to now" on the trial date. "The status conference slated for next week will discuss, among other agenda items, the possible date for the opening of the trial," she said. "The judges will decide, next week or later, taking into consideration the arguments and requests of parties and participants and different factors, to ensure the fairness of the trials," Kamara said. The status conferences for the suspects will be on Monday and Tuesday next week.

The four Kenyans charged with crimes against humanity after the post-election violence are Eldoret North MP William Ruto, Deputy Prime Minister Uhuru Kenyatta, former Civil Service boss Francis Muthaura and radio presenter Joshua Arap Sang. The ICC have asked the suspects to indicate the dates on which they would wish the trials to begin.

Defence lawyers are traveling to the Hague this weekend for the status conferences to be held on June 11 and 12. The conferences are expected to set the trial dates as well as to resolve issues such as the disclosure of evidence. “We were told that the judges may slightly change the dates but the prosecution is ready to begin in September,” said the witness.

Trial Chamber V with judges Christine Van den Wyngaert (Belgium), Kuniko Ozaki (Japan) and Chile Eboe-Osuji (Nigeria) will handle the Kenyan cases. Incoming Chief Prosecutor Fatou Bensouda will lead the prosecution. The ICC may follow its own timetable despite Ruto applying to have his case postponed until after the election so that he can stand for president. In his submission ahead of the status conference, Uhuru applied to have the cases heard locally in either Nairobi or Arusha. The judges have apparently indicated their willingness to start the hearings as soon as possible, according to sources at The Hague.

More than 20 witnesses for the prosecution have been asked to indicate if they will be ready to testify either in public or want to testify in private. “As for me I will testify in public if need be”, said one witness. The prosecution has so far not revealed the identity of its witnesses despite demands by defense lawyers. Recently Ocampo complained about witness security but the ICC has since relocated some witnesses and placed them under tighter security. If the cases start in September, that will complicate the plans of Ruto and Uhuru who want to stand for president in 2013.

However sources at the Hague indicate that the judges will only go by the provisions of the ICC statutes and will not take local politics into consideration. Two weeks ago ICC investigators and top lawyers were in Kenya and looked at possible new evidence but a decision was yet to be made on whether to fly out the witnesses who had testified before the Waki Commission. Most of the possible new witnesses are from Naivasha and Nairobi.

The ICC investigators also visited to post election violence hot spots in Eldoret, Naivasha and Nakuru to look further at the possible planning of the violence. The team led by a lawyer from Burkina Faso spoke to more than 100 people including victims and individuals mentioned in the Waki Commission report. Some potential witnesses went for further interrogation at undisclosed locations. The violence after the botched December 2007 election claimed the lives of more than 1,300 Kenyans while another 300,000 were displaced mainly in the Rift Valley. At the status conference next week, the suspects will not be required to be present and they will send their lawyers for the meeting.

http://www.the-star.co.ke/national/nati ... -september

[ICC.supporter]

theStar

Kenyan ICC cases given go ahead but legal hurdles remain

Wednesday, 06 June 2012 23:55

BY NZAU MUSAU AND SIMON JENNINGS

The cases against four senior Kenyan figures before the International Criminal Court cleared a major hurdle on May 24 when appeals judges rejected challenges which the defendants had filed over whether the court has jurisdiction to prosecute. The cases now look set to go to trial in The Hague within a year, and the decision has been welcomed as a big step forward by rights groups and victims of the December 2007-08 violence that followed the disputed presidential election. The parties will convene in The Hague on June 11-12 to discuss the next steps in the process, including a possible start date.

The appeals chamber did not rule on an important issue raised at previous hearings – how to define an “organisational policy” for the commission of grave crimes. Suspicion that such a policy existed is part of what gives the ICC jurisdiction to try a case. Instead, they deferred that decision until relevant evidence has been heard during the trial.

Kenya descended into violent chaos following the December 2007 election, leading to the deaths of more than 1,300 people and approximately 350,000 others being forcibly displaced. Following court hearings during September and October 2011, the ICC confirmed charges of crimes against humanity against Deputy Prime Minister Uhuru Kenyatta, former civil service chief Francis Muthaura, former Higher Education minister William Ruto and radio journalist Joshua arap Sang.

On January 30, defence lawyers for all four defendants challenged the ICC’s jurisdiction to try the cases, on the grounds that the crimes being prosecuted did not meet the necessary legal threshold of crimes against humanity and were therefore not serious enough to fall within the court’s jurisdiction. The five-judge appeals panel ruled that the defence’s submissions did not amount to a jurisdictional challenge, but instead hinged on the prosecutor’s evidence in the case, and should therefore be decided on the facts presented at trial.

According to the ICC’s founding treaty, the Rome Statute, in order for an act to qualify as a crime against humanity and merit investigation by the international court, a key requirement is that it has been committed against a civilian population “pursuant to, or in furtherance of a state or organisational policy”. The defence teams in the Kenya case all argue that the prosecutor’s evidence has not demonstrated an “organisational policy” on the part of the defendants, and that the case should therefore not be tried by the Hague court.

ICC judges were themselves divided on this point when issuing their decision to open an investigation into Kenya’s post-election violence in March 2010, and again when confirming the charges in January this year. In 2010, two judges ruled in favour of advancing the investigation in Kenya while the third, Judge Hans-Peter Kaul, disagreed. Kaul issued a dissenting opinion arguing that the evidence did not establish grounds for believing there was an organisational policy behind the crimes; and that the ICC therefore did not have jurisdiction over them.

In Kenya, supporters of the ICC process hailed last week’s decision as an endorsement of the prosecutor’s powers to investigate crimes on his own initiative. The Kenyan investigation will be the first case that ICC Prosecutor Luis Moreno-Ocampo has initiated and successfully brought before the court, under the legal doctrine known as “proprio motu”. “By exercising his proprio motu powers and succeeding on it to this level, the prosecutor and the court have shown the zeal to punish international crimes,” said James Gondi, the head of the International Centre for Transitional Justice in Nairobi.

Ocampo began investigations in Kenya after the government repeatedly failed to establish a local mechanism to prosecute alleged perpetrators of the post-election violence. Priscilla Nyokabi, director of the legal aid organisation Kituo Cha Sheria in Nairobi, believes last week’s decision will spur the prosecutor’s imminent successor, Fatou Bensouda, to initiate further investigations elsewhere. “[The decision] will undoubtedly embolden the incoming prosecutor to be more proactive,” Nyokabi said.

Victims of the violence who are yet to see any senior figure brought to justice for the violence are also happy that the case is moving towards trial proceedings, although for many it will take more than a justice process to help them rebuild their lives. “I want those who did this to me punished,” said Eric Kioko who was a disc-jockey at the time of the post-election violence when he lost his hand in an attack on Mathare slums in the heart of Nairobi. “But above all, I want to be restored as near as possible to the position I was in before.”

A Decision Deferred

The May 24 decision has given no greater clarity to the question of “organisational policy”, or to how the court should handle the legal issues raised by both Judge Kaul and by the defence teams. In their January submission, defence lawyers did not explicitly ask the appeals judges to give their interpretation as to whether the prosecutor’s evidence made the case that the defendants’ alleged actions were underpinned by an “organisational policy”.

At the 2010 hearing, the two pre-trial judges reached an understanding – which they repeated when confirming the charges in January 2012 – as to the required legal criteria for such an organisational policy, including the existence of a command structure, a hierarchy, and criminal intent. However, the appeals chamber did not rule on these criteria.

William Schabas, a professor of international law at Middlesex University in the UK, believes the appeals judges were right not to reach a decision at this stage. “It’s always wise to decide these things in light of a good factual framework,” Schabas said. “I’m not surprised [judges took this route] and I think it is probably the right decision.”

Other legal experts were surprised by the decision, and said it would have been useful for the appeals chamber to outline the legal standards for determining that an organisational policy existed. “I am surprised that the appeals chamber did not confirm, one way or the other, the analysis of the organisational policy provided most recently by the pre-trial chamber in their January 2012 confirmation of charges decisions,” Jens Ohlin of the Cornell Law School in New York said.

If the court had explicitly set out its views on what constitutes an organisational policy, then the parties in the case would be able to “go into trial knowing how to make their arguments”, Ohlin said. Some of the defendants have given notice that they intend to raise the matter early on in the trial. "Fairness dictates that the accused know with clarity the precise contours of the charges against him," Sang argued in his filing.

The lack of clear legal parameters could mean that the parties are talking at cross-purposes when the case comes to trial. “You’re going to have litigants going into the trial making arguments when the law is still a little bit unsettled,” Ohlin said. Unless all four defendants are acquitted, appeals judges are likely to be asked to rule on the same point after the trial is over. If that happens, they could find that the factual information presented during the trial does not contain enough proof of the existence – or otherwise – of an organisational policy to inform their own decision on the matter. Ohlin noted that the danger of this happening is precisely the reason why the court has in the past been willing to make key legal decisions in advance of a trial.

Definition could shape future ICC policies

A definitive statement of the legal standard for “organisational policy” is not only crucial to the Kenyan trial, it also has implications for the ICC’s future activities. It could restrict the prosecutor’s authority so that he can investigate only the most serious cases of genocide, war crimes and crimes against humanity; or it could offer scope for broader investigations if the interpretation is more generous. Either way, the final definition will be “hugely influential for many years to come”, according to Schabas.

He noted that international courts have often started with a broad interpretation of crimes against humanity, allowing them to target lower-level suspects, before they establish themselves and are able to prosecute high-profile figures. “I think the problem with international justice is you need to have a net with big holes in it, so the smaller fish you are not interested in can swim through,” Schabas said. “It has never been interested in having a net that catches everything. Then you end up with a net full of garbage.”

Schabas believes the ICC will have its hands full dealing with major alleged criminals, so pursuing lesser crimes and their perpetrators will only “clutter” the judicial process. A final ruling on the matter will only come in several years time when appeals judges define the standard for testing the existence of an “organisation policy” behind crimes against humanity, in this case in Kenya. A trial judgement is probably close to three years away, and appeals judges would still have to issue a ruling after that. “There is going to be great uncertainty in the world community about what exactly the extent of the court’s authority is in this area, so it is going to be a big mess,” Ohlin said. “You’re talking about years more of uncertainty on this.”

Nzau Musau is an IWPR-trained reporter in Nairobi and Simon Jennings is IWPR’s Africa Editor.

http://www.the-star.co.ke/lifestyle/128 ... les-remain

[ICC.supporter]

Daily Nation

Opinion

There’s a great deal of hypocrisy and politics involving the Mungiki issue

In the recent past, the government through the Commissioner of Police and his spokesman has escalated the demonisation of Mungiki.

Presidential aspirants have been ‘warned’ to keep off this group and instead to look for support from law-abiding institutions like the Kenya National Union of Teachers, among others.

This unsolicited piece of political advice is curious in that it has nothing to do with security, law and order, the core mandate of the police.

On whose behalf are the police advancing what is clearly a political agenda? Is there a motive behind the heightened demonisation of Mungiki?

Such demonisation is very effective when government machinery, through the police, Provincial Administration and the NSIS are deployed to plant propaganda in the minds of the public.

It is common knowledge which presidential candidate courted and got Mungiki support in the run-up to the 1997 elections.

During the 2002 elections, it is again common knowledge which presidential contender courted and got Mungiki’s support. There was no demonisation.

When Mr John Michuki took over as Minister of State in charge of Security, a policy of extra-judicial executions of Mungiki appears to have been put in place and ruthlessly implemented from mid-2005, reaching its climax through 2006 and 2007.

Various reports by human rights organisations have it that approximately 10,000 young men from Central Kenya were executed.

This is a crime against humanity. It is difficult to tell who among those executed were Mungiki and who were not.

In the 2007 elections, it is again common knowledge as to who reached out to Mungiki for support, including the well-publicised visits to Maina Njenga at Naivasha Maximum Prison by government emissaries.

The extra-judicial executions were even suspended in the months leading up to the elections. Again, there was no demonisation of Mungiki. What has now changed?

Could it be that for the first time, as we approach yet another election, the youth in Central Kenya might have decided that they will not this time round agree to be “used and dumped”?

Is there a political agenda in Central Kenya to use the police and the Provincial Administration to force issues with the youth for or against certain presidential candidates?

Do not get me wrong. I do not and have never supported brutalities committed by Mungiki on innocent people, nor do I support extortions.

All must work to support themselves and their families.

Further, I am painfully aware of the abhorrence with which many in Central Kenya view the Mungiki.

My stand is, and has been, that governments cannot violate the law and the Constitution in the name of keeping law and order.

Those committing acts of brutality and extortion should be arrested and prosecuted as individuals.

The police have said they have intelligence reports of Mungiki regrouping in order to commit crimes.

If indeed they have this intelligence and it is accurate, they should not wait for crimes to be committed. They should arrest the individuals concerned.

Conspiracy to commit a felony is a crime defined in the Penal Code. The police have the capacity for investigations.

Branding all the unemployed youth from Central Kenya Mungiki is not the way to go.

Moreover, the government is aware who authorised the Mungiki to take over and manage matatu/bus termini to “earn a living.”

Is the public being psychologically prepared for another round of extra-judicial executions?

My further stand is and has always been that Mungiki is not simply a “law and order issue.” To approach its solution as if it is, is to miss the point altogether.

It is an economic, social and political issue. Its eradication must factor in all these dimensions.

Since 1963, economic, social and political policies have focused on the owners of capital and large-scale farms, not on peasants.

This is how we have ended up with one of the most unequal nations in the world. We borrow money to build roads, but not to harvest rain or subsidise irrigation.

The vision in the fight for independence was betrayed on attainment of the independence. Poverty remains rampant.

Eradication of the widespread and deep-rooted high-level corruption, followed by economic, social and political policies targeting the majority, many of whom are hard-working and who only want opportunities, is what will eradicate Mungiki.

Mr Muite is a senior counsel and politician.

http://www.nation.co.ke/oped/Opinion/-/ ... index.html

[ICC.supporter]

The Economist

Kenya’s politics

Still too tribal

Kenyans have the jitters as they start gearing up for next year’s elections

Jun 9th 2012 | NAIROBI | from the print edition

WHEN a group of idealists calling themselves “patriots” and “nationalists” tried to hold a political rally in Limuru, half an hour’s drive north of Nairobi, Kenya’s capital, they ended up being chased into the forest by police firing live rounds and tear gas. The police labelled them “dangerous” and “criminal”. The organisers’ grave error was to tell the crowd that they were not obliged to vote for someone from their own ethnic group.

Among the speakers was Ngunjiri Wambugu, a businessman involved in politics for the first time because he reckoned that Kenya’s business climate has been soured by tribal squabbles. It was time, he said, to nudge people along the road from “tribe thinking to Kenya thinking”.

If only. The last time Kenyans went to the polls to elect a president, the ensuing dispute left 1,500 people dead and 300,000 displaced. The chaos, much of it orchestrated by leading politicians, tore the seams of Kenya’s patchwork of more than 40 tribes, with violence erupting largely along tribal lines. Tribalism, plainly, was still the bane of Kenyan politics.

The International Criminal Court (ICC) at The Hague wants to try the alleged ringleaders for crimes against humanity. A trial date is expected to be set on June 12th. The coming presidential election, due in March next year, may well clash with it. Two of Kenya’s leading candidates may find themselves in a Dutch dock just when they would rather be on Kenya’s hustings.

The most prominent is Uhuru Kenyatta, a son of the country’s founding president. Many think he is also the country’s richest man. The ICC has recently jailed a former head of state, Liberia’s Charles Taylor, and in 2008 indicted Sudan’s incumbent, Omar al-Bashir. Kenyans could set an unfortunate precedent by electing a head of state while he is actually on trial at the ICC.

Nairobi’s political elite reckons it has learned the “Bashir lesson”: the African Union, it seems, will defend one of its own if he is still in office. Witness the fate of Jean-Pierre Bemba: once he had lost the presidential election in the Democratic Republic of Congo in 2006, he ended up at the ICC. The fear is that Mr Kenyatta will see the coming election as his get-out-of-jail card and play it for all it is worth. President Mwai Kibaki, who is to stand down after two terms in office, may be persuaded to withdraw co-operation from the ICC to protect Mr Kenyatta if it insists on summoning him; they are both members of the Kikuyu tribe, the largest and richest in Kenya. But if that happened, it could lead to turmoil at home, international sanctions imposed from abroad, and a loss of confidence in Kenya’s economy.

Kenya is governed by a ramshackle coalition that includes prominent people from every main tribe, with power determined by complex alliances of the main groups, most of them rent by internal rivalries. Most political parties still act as vehicles for tribal champions. “Tribal politics is alive and well,” said Murithi Mutiga, a commentator. “It’s a numbers game which makes elections more like a census.”

Mr Kenyatta’s new grouping, the National Alliance, is energetically shoring up support in Central Province, heartland of the Kikuyu and the closely related Meru and Embu, most of whom tend to vote in a block. Some of his supporters gave a taste of the coming campaign when they told voters they should “elect a dog” as long as it was wearing the new party’s colours.

Mr Kenyatta has teamed up with another tribal champion, William Ruto, a Kalenjin, who is also facing trial at the ICC. They have formed an alliance known as the G7, which embraces seven supposed champions, whose main aim, it seems, is to stop the prime minister, Raila Odinga, from becoming president. In case Mr Kenyatta and Mr Ruto are both prevented from running by the ICC, they have poached Musalia Mudavadi, a lesser light in Mr Odinga’s party, to lead their alliance instead.

Most observers think Mr Odinga narrowly won the last presidential contest but had to settle for the lesser job of prime minister in a coalition following the disputed election. He has tried hardest to build a coalition across the tribal spectrum. But his base is the Luo people of western Kenya, who have long felt done down by the Kikuyu and Kalenjin. Though his performance as prime minister is widely regarded as chaotic, he broadly retains Western governments’ backing, which he may use in an effort to persuade the UN Security Council to defer his rivals’ ICC trial until after the election. That would rob Messrs Kenyatta and Ruto of one of their main campaign issues.

Kenya’s messy politics has hurt its economy. A recent Harvard study suggested it should be growing at 7% rather than 4%, the latest figure. The government is belatedly trying to improve the country’s shoddy infrastructure, for instance by building a series of multi-lane roads around Nairobi. But the political instability still puts off investors and corruption remains rife. The finance ministry’s top civil servant recently told Parliament that as much as a third of the budget was lost to graft.

http://www.economist.com/node/21556601