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.
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.
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.
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.
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.
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.
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