The ICC Process and Kenya

Background

April was a month where all of us (Kenyan’s) were looking at The Hague. This was as a result of being bombarded with news of Ocampo 6 and their scheduled trip to The Hague. For those without a clue on what the phrase Ocampo 6 means. This are the 6 individuals that the Prosecutor of the International Criminal Court, ICC Mr. Louis Moreno Ocampo perceived to have the most to answer about the post election violence that grappled Kenya after the bungled polls of December 2007.

All of us saw on the television sets in early January 2008 as a Kenya almost went to the dogs as the two feuding parties ODM and PNU tried to settle their scores outside the ballot. It had to take the intervention of seasoned diplomat Kofi Annan, the immediate former UN Secretary General for cessation of hostilities between the two groups and the formation of a coalition government to take us through until 2012.

Under this process 4 agenda’s were agreed with the first being the cessation of hostilities and formation of a coalition government. Others were formation of Judge Waki and Kreigler commissions with the former required to look at the persons responsible for the injustices and the latter to determine what went wrong in the election process. Both this commissions gave their finding known with Waki commission and Kreigler commissions presenting their finding to the two principles. The Kreigler commission went to as far as to say it was impossible to determine the clear winner in the 2007 polls while the Waki commission presented a secret envelope to the chief mediator Kofi Annan. The suspects in the Waki envelope were to be either tried locally or taken through an international process. The other agenda was the enactment of a new constitution which is already in place.

International Criminal Court

In mid December 2010 the Prosecutor announces the 6 suspects that in his opinion bear the greatest responsibilities for the Post Election Violence and the death of over 1000 people and displacement of over 100,000 persons internally. The 6 suspects were William Ruto (then Minister of Higher Education), Uhuru Kenyatta (Dep. PM and Minister of Finance), Francis Muthaura (Head of Civil Service), Henry Kosgey (then Industrialization Minister and head of ODM), Maj. Gen. Hussein Ali (Post Master General and former head of Police) and Sang (a little known journalist).

The announcement of this names sent shock waves to the highest echelons of the Kenyan government. Since most of the parliamentarians when presented with a local judiciary mechanism thought that the ICC would never come calling in and ‘IF’ it did the it would take ‘light years’ for the process to commence. Furthermore, most were of the opinion that the Waki envelope did not contain their names and at most the responsibilities of Post Election Violence would be weighed by the principals.

However, the prosecutor had pulled a fast one on them! He was not going after ‘Political Responsibility’. He was going after those who planned attacks in certain parts of the country and executed those plans. He was also going for the jugular of the people who responded to these attacks by organizing counter attacks.

The Administration hits backs!

When it clearly sunk in to one part of the coalition government that The Hague process was NOT vague as had earlier been assumed. That part of the coalition started to plan a counter offensive to this route.

This came through the botched appointment of Chief Justice. An episode that saw the president ‘eat’ humble pie by taking back four constitutional nominations. This was done early in February 2011 before a scheduled AU head of state conference. This episode almost saw the split of the coalition.

The other was through the infamous ‘shuttle diplomacy’. The vice President of the Republic flew on the tab of tax payers to different capitals of the world to woo major players in the world to support an AU sponsored motion to deferrer the ICC case for 1 year on account of expected election in 2012.

When the shuttle diplomacy hit a snag the government went to the last option of contesting jurisdiction of the Post Election Violence cases at the ICC.

Perhaps it is on this account the prosecutor instigated early summons of the suspects to the ICC on April 6-7, 2011.

Count Down to The Hague

As the D-Day approached 4 of the Ocampo 6 engaged in a series of Public rallies and cum Prayer meetings. Perhaps when it dawned on them that The Hague had become inevitable.

However, some of these rallies had what Judge Ekaterina Trendafilova called ‘dangerous speeches’ that could see the recurrence of violence.

As The Hague date approached the government became disorganized in terms of the approach to take to save the six high level persons.

However, what came as a shocker was that 40 MP’s were accompanying the six to The Hague.

D-Day I (April 6, 2011)

This was the fist we were seeing of the ICC in action. On this day saw the appearance of William Ruto, Henry Kosgey and Sang at the ICC chamber 2.

What stood out for me was the sheer timeliness (the three were warned for 3 minutes delay) efficiency and clarity of the court.

We also got to know the defence council of the suspects, the court registry, the prosecutor team and the judges.

We also witnessed drama and side shows of Kenyan MP’s who accompanied the 6 to The Hague. (Mind you most of the TV station had crew at The Hague reporting LIVE!). This lead to a joke of Nation TV was doing county edition aka Hague County (48^th County)!

D-Day II (April 7, 2011)

On day 2 of the ICC we saw the defence council of the other 3 suspects. However, saddened to learn this group (nick-named by the Kenyan Press-All the Presidents Men!) had few if none Kenyan’s in their defense council.

Reflections/Questions Arising

Now that we have a Hague process going on it is time to have a local mechanism to try the ground soldiers of the post election violence. To out as one member of Bunge la Mwananchi put it. The Hague Process is like a rabbit it would be over without us knowing it serving a Western kind of Justice. We need a Tortoise mechanisms which will lead to trying of small perpetrators which will take time become an example to local folk not to be used and misused.

We need to know what the government was conceding during the negotiation for so called shuttle diplomacy. Something MUST give and the public ought to be informed on concessions made for support of Kenyan deferral at the UN Security Council.

A mechanism needs to be adopted for future shuttle diplomacy mission. A clear guideline should be tabled and at first instance diplomatic missions in the country need to be the first reference points for such endeavors.