Wednesday, November 4, 2009



By Standard Team

President Kibaki and Prime Minister Raila Odinga met behind closed doors to discuss how their date with International Criminal Court Chief Prosecutor Luis Moreno-Ocampo on Friday should proceed.

They met as Justice Minister Mutula Kilonzo, who has been their link with Ocampo’s office, revealed Ocampo’s advance party had arrived.

"I even offered them office space, but they said they don’t need it as they are at the UN headquarters," said Mutula, in an interview with The Standard yesterday.

Pressure from the international community and ICC has been piling on the two leaders to co-operate on investigations, arrests and even trials of high profile personalities linked to post-election violence.

Chairman of the task force on police reforms Justice (Rtd) Phillip Ransley presenting the report to President Kibaki and Prime Minister Raila Odinga Tuesday at Harambee House. [PHOTO: TABITHA OTWORI/ STANDARD]

They are also grappling with incessant demands from Western capitals and even the UN to set up a special local tribunal that meets international standards to try minor offenders in the chaos that followed declaration Kibaki had won a second term.

Sitting back

Confidential sources within the President and the PM’s offices revealed the two could have chosen the ‘safer’ path of declaring they would co-operate, but sitting back to let ICC steps on Kenya take its course as defined by the Roman Statute.

It decrees that where the State in question does not officially refer the case to ICC as Ocampo requested in his letter to Kibaki and Raila last week, then he would use his powers to order Pre-Trial Chamber hearings on Kenya’s suspects.

This way, the source revealed, the President and the PM would have cushioned themselves against possible backlash of being seen to have sacrificed their allies.

"The plan is to look good in the eyes of the world but in the end let Ocampo have his way without them being seen to have given him a hand,’’ revealed our source.

Sources revealed the President and the PM were careful not to be seen to be overtly sabotaging the July 3 agreement, signed by their Cabinet members with Ocampo on full co-operation, including handing over suspects for trials in The Hague or any other place ICC would pick.

The Cabinet has, however, taken the official position that the Kenya case was in dire need of truth, justice and reconciliation approach.

Chief Mediator Kofi Annan on the other hand, has been pushing for a three-tier approach: ICC, a special local tribunal and TJRC.

Yesterday, Raila’s party, the Orange Democratic Movement National Executive Council, held closed-door talks during which other sources revealed it was agreed that a push must be made for the prosecution of ‘election thieves’ along with those suspected to have planned, financed and fanned the violence. Briefing the press after the meeting ODM chairman Henry Kosgey said it was up to Ocampo to investigate all matters relating to post-election violence.

"We as a party will not meet him, but certainly we will be represented by the Prime Minister since he is one of the principals in the Coalition Government," he added.

Sources at the ODM NEC meeting at party headquarters in Nairobi, said the leaders agreed not to allow any of the members to be victimised following allegations that they were involved in the 2007 mayhem.

Stole elections

"We told the party hierarchy those who stole the elections must be identified. We killed nobody ... The police killed our people," said a NEC member, who sought anonymity.

It also emerged the NEC meeting mandated Raila and his two deputies Musalia Mudavadi and William Ruto, and Kosgey to meet in the evening and agree on ODM position ahead of Ocampo’s arrival. Ocampo’s advance party is reported to have arrived yesterday, as ODM top brass renewed calls for 2007 presidential election riggers to be prosecuted.

ODM met shortly after Kibaki and Raila held talks at Harambee House.

In a related development, they later jointly received the Task Force report on Police Reforms prepared by Justice (Rtd) Phillip Ransley.

Police reforms are some of the key pillars of changes the international community is pushing for, as were recommended by two key commissions formed after post-election violence. Two other members of the Ocampo team are set to arrive this morning, according to the minister.

Mutula said the Government is co-operating with ICC from the Cabinet level after the two principals agreed to the visit. He also later called for punishment for those found guilty of post-election offences.

Lands Minister James Orengo, a member of the July delegation to The Hague, said since Kenya is a signatory to the Rome Statute, it had no option but to respect the process.

Ocampo arrives tomorrow morning, having sent a letter to President Kibaki and Raila dated October 27, on the options pertaining to the key suspects.

Article 15 of the Rome Statute gives Ocampo the powers to initiate an investigation on the basis of information on crimes that fall within the jurisdiction of the Court, and provided the criteria referred to are met.

He argued this investigation is triggered when the prosecutor, having concluded that there is a reasonable basis to proceed with an investigation, submits to the Pre-Trial Chamber a request for authorisation of an investigation together with any supporting material.

Rome Statute

"The Rome Statute provides that if the Pre-Trial Chamber upon examination of the request and the supporting material considers that there is a reasonable basis to proceed with an investigation and the case appears to fall within jurisdiction of the court, it shall authorise the commencement of an investigation," he adds

Ocampo further says according to Article 13 and 14 of the Rome Statute the second option is that Kenya may also proceed with a referral and lead investigations. This option does not require parliamentary approval, as it is an Executive decision.

"A referral would not preclude Kenyan judicial authorities carrying out complementary investigations and prosecutions," he added. The ICC chief further suggests to Kibaki and Raila that there is a possibility to hold ICC proceedings locally.

According the letter a copy of which was obtained by The Standard, the ICC Chief Prosecutor says he will be in Nairobi to offer the two principals different options to open an ICC investigation on alleged crimes.