How Did Kenya Find Herself Before The ICC ?

 The idea of universal justice ensuring that no rules, no junta and no army anywhere can abuse human rights with impunity has inspired the creation of the international criminal court. Serious crimes have been committed in the life of humanity allowing the guilty to continue their life with impunity leaving the victims of the crime and their families severely devastated. All these happened under the watchful eye of the international community due to the absence of a permanent international mechanisms to try these perpetrators. The worst examples are provided by the crimes committed by the Khmer Rouge in Cambodia where an estimated three million people were killed and by the former tyrant of Iraq Saddam Hussein who ordered in March 1988 a chemical warfare assault against the Kurdish civilians lining in the town of Halabja in which mustard cyanide and nerve gases were deployed against innocent Kurds.

It took the united nation 50years to adopt a convention on the establishment of a permanent international criminal court. It took this long because the crimes punishable under the jurisdiction of the court are usually committed in internal conflicts. The perpetrators of these crimes should be brought before the national courts. However,in some situations national institutions may have collapsed like in Rwanda and Cambodia or governments are unwilling,reluctant or unable to try these perpetrators before the national courts. This explains the need for the establishment of the international criminal court - ICC.

Left: Moreno Ocampo,President Mwai Kibaki & PM Raila Odinga

How did Kenya find herself before the ICC ? After the disputed 2007 general election party of national Unity- PNU candidate Mwai Kibaki claimed victory but this was disputed by Orange Democratic Movement (ODM)’s Raila Odinga rejected the results. Unprecedented violence ensued,1133 people were killed and over 600,000 others displaced from their homes. The international community got involved and through the panel of eminent African persons from the African Union under the Chairmanship of Kofi Anan brokered a peace deal leading to the signing of the National Accord.A commission of enquiry into the post election violence(CIPEV) was formed on 23^rd May 2007 to investigate the facts and circumstances surrounding the violence, the conduct of the state security agencies in their handing of it and to make recommendations concerning these and other matters. In its recommendations, it provided that a local tribunal be formed to try the perpetrators of the violence or the international criminal court takes over the matter. After several visits by the prosecutor of the international criminal court, Luis Moreno Ocampo to the government of Kenya, no substantial progress was being made by the government to bring the perpetrators to justice.

The prosecutor submitted a request to the pre-trial chamber to open an investigation proprio motu  on the situation in the republic of Kenya. This request was granted and upon completion of investigations, the pre-trail chamber issued on 8^th March 2011,summons to appear for the suspects in case pursuant to article 58(7) of the Rome statute.

It is important to note at this point that several challenges have been filed before the ICC to halt the trial but most have failed. The government even begun a diplomatic offensive in the name of "shuttle diplomacy" to try and lobby the UN security council to defer the case for a period of 12 months pursuant to article 16 of the Rome statute. This too failed like a thud. This set the way for the wheels of justice to begin rolling. After the suspects appeared in accordance with the summons to appear, the pre-trail chamber examined the basis of the evidence provided by the prosecutor and defence teams. Upon complete evaluation the chamber was convinced by a majority decision ratio of 2:1 that there are reasonable grounds to believe that four of the six suspects committed the crimes they are accused of. As such the four cases have been sent to trial and two acquitted by the court.

The suspects whose cases have been sent to trial, unhappy with the decision of the pre trial chamber have appealed the decision. Amongst their prayer was not granted. The president of the ICC has therefore constituted a trial chamber of three judges –Kuniko Ozaki(Japan),Chile Eboe-Osuji(Nigeria) and Christine Van Den Wyngaert(Belgium).

The ICC will have complementary jurisdiction to national criminal courts. This means that the ICC will have jurisdiction only if the competent national authorities will be unable or unwilling to prosecute.

            Under the Rome statute, the jurisdiction of the ICC is based on a two track system.Track one concerns the situation where the security council acting under chapter VII will refer a matter to the ICC.All states will be bound to comply with the security council decision to surrender the individual person or to supply evidence. The security council has already exercised this option for instance regarding the situation in Darfur Sudan, President Omar Al Bashir has already been indicted though he is still at large and other Sudan Military commanders.Track two involves where contacting states or the prosecutor will refer to the court.

        The prosecutor’s power initiate investigations is subject to strict safeguards, including seeking authorisation from the pre-trial chamber as happened in the Kenyan situation. Uganda and Democratic republic of Congo have made self referrals to the ICC.Article 17-states that the ICC will find a case in admissible if;The case is being investigated or prosecuted by a state which has jurisdiction over it unless the state is unwilling or unable genuinely to carry out the investigation or prosecution.The person concerned has already been tried for conduct which is the subject of the complaint and a trial by the court is not permitted under article 20 paragraph 3.

The case is not of sufficient gravity to justify further action by the court.

     Challenges to admissibility or the jurisdiction of the court may be made by; An accused or person for whom a warrant of arrest or a summon to appear has been issued under article 58.A state which has jurisdiction over a case on the ground that it is investigating or prosecuting the case or has investigated or prosecutor a state from which acceptance of jurisdiction is required under article 12.It is worth noting that admissibility of a case or a challenge to jurisdiction of the court may be challenged only once by any person or state referred to in paragraph 2.In exceptional circumstances, the court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial.

Kenya Vice-President Kalonzo Musyoka with UN chief Ban Ki-Moon

( During one of the shuttle diplomatic mission visit ) 

Kenya has  repeatedly failed to save her citizens from the ICC.The matter required simple, uncomplicated execution but the state has blown it out of proportion. At the core was whether the state is able and willing to investigate and prosecute suspects of the 2008 post election mayhem. The ICC is a complementary court and only acts when states fail to do so. However the legislature failed to establish a local tribunal of an international stature. This fatal mistake effectively opened the door for the ICC.
   The government’s steps in relation to the ICC have been seen to be hostile and appears to sabotage the court. The ill conceived ridiculous idea of shuttle diplomacy led by the Vice president to rally Africa and the UN to force the ICC to drop the Kenyan cases was fatal.However,the prerequisite for such an action would have been credible investigations and prosecutions in Kenya.Furthermore, the state’s repeated and vexatious challenges of admissibility and jurisdiction to the ICC have dented the Kenyan image.Infact chile Eboe-Osuji while still serving as the legal adviser to the UN high commissioner for Human Rights Dr Navi Pillay advised the Kenyan government against the many frivolous and vexatious challenges to jurisdiction and admissibility. He wrote, Kenya has only one chance to lodge such an admissibility challenge and it would be unwise to squander it.

      Finally going by the above submissions, I rest my case for us to decide on the social-political ramification of the cases at hand.However,we should keep in mind that the victims both the accused and the victims of the atrocities of the 2007-2008 mayhem will receive justice and a fair trial on the accused persons’. I am not going to give a long speech in regards to the jurisdiction and admissibility of the cases because Socrates’ was killed on the same, thus it is up to Kenyan citizen to decide on the direction of the ICC cases.

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