Friday, December 17, 2010

Kenyan Government Reactions to ICC Prosecutor's Application for Summonses

Things are heating up with the announcement that the ICC Prosecutor has applied for summonses for six high profile Kenyan citizens. In my post immediately below, I provided links to statements by Kenyan President Mwai Kibaki. Here is another official position. This one was made yesterday before the National Assembly by Prime Minister Raila Odinga.



Mr. Speaker,

I have had the opportunity to peruse the record of yesterday’s proceedings in this House.  I appreciate the interest of the Members and the public at large in seeking a Government Statement in the matter regarding the ICC Process.  I further appreciate the anxiety, the uncertainty and the desire for clarity on a matter as weighty as the ICC Process.  The voice of the Government therefore needs to be heard, loud and clear, in these circumstances which have never before been experienced in our country.

Mr. Speaker,

I would like to first retrace the journey to yesterday’s announcement by Mr. Louis Moreno-Ocampo, so as to remind ourselves of how and why we got to this point.  I sincerely believe that some historical perspective is necessary in order to fully understand our present circumstances and to articulate a way forward on this matter.

On March 4, 2008, the Eight (8) Members of the Serena Dialogue Team signed an agreement, as part of the National Accord, for the establishment of a Commission of Inquiry on Post-Election Violence.  The Terms of Reference of the Commission (now known as the Waki Commission) were to:

   (i)        investigate the facts and surrounding circumstances related to acts of violence that followed the 2007 Presidential Election;
 (ii)        investigate the actions or omissions of State security agencies during the course of the violence, and make recommendation as necessary; and

(iii)        to recommend measures of a legal, political or administrative nature, as appropriate, including measures with regard to bringing to justice those persons responsible for criminal acts. 

The Terms of Reference of the Commission further provided that certain aspects of the Commission’s Report may be kept secret in order to protect the identity of witnesses or persons accused, and hence the “Secret Envelope”.

(I table the Serena Agreement dated March 4, 2008 on the Waki Commission).

Mr. Speaker,

The President appointed the Waki Commission vide Gazette Notice No. 4473 on May 22, 2008.  The Waki Commission submitted their Report on October 16, 2008 which recommended in Chapter 13 that a Special Tribunal for Kenya be set up as a Court to investigate, prosecute and adjudicate on cases relating to post-election violence and to bring to justice those persons responsible for criminal acts.

The Waki Report was discussed in the Cabinet and subsequently laid before this House on December 4, 2008 and adopted on January 27, 2009.

(I table the Hansard Record of the debate and adoption of the Report).

Mr. Speaker,

On January 29, 2009, the Government introduced in the House, the Constitution of Kenya (Amendment) Bill together with the Special Tribunal for Kenya Bill.  After extensive debate, and with the President and Prime Minister present and voting in favour of the two Bills, this House rejected the Bills on February 11, 2009.

(I table the Hansard Record on the Division of that day).

The Government then negotiated an extension of time with H.E. Kofi Annan to enable it re-introduce in the House, the Bills on a Local Tribunal. Fresh Bills on a Local Tribunal were prepared but were rejected by Cabinet on July 14, 2009 and again on July 30, 2009.

On July 8, 2009, Annan handed-over the “Sealed Envelope” to the ICC.

Further Bills on a Local Tribunal by Hon. Gitobu Imanyara became still-born in the House on November 14, 2009 due to consistent lack of quorum.

On November 26, 2009, an application was filed before the ICC seeking authorization for investigations of the situation in Kenya to be commenced by the Prosecutor in Kenya in relation to the post-election violence.  Such authorization was granted on March 31, 2010.

(I table the ICC Decision of March 31, 2010).

Mr. Speaker,

I understand the events of yesterday to be as follows: -

Mr. Moreno-Ocampo has completed his investigations of the situation in Kenya and submitted an application requesting the Pre-Trial Chamber of the ICC to issue summons to six persons to appear before it.  The said application is based on Article 58(7) of the Rome Statute which provides as follows: -

As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear.  If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person’s appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear.  The summons shall contain:

(a)        The name of the person and any other relevant identifying information;

(b)        The specified date on which the person is to appear;

(c)         A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and

(d)        A concise statement of the facts which are alleged to constitute the crime.

The summons shall be served on the person.

At this stage, none of the six persons named in the Application have been “charged”.  The six have not been the subject of investigations. 

The Pre-Trial Chamber will therefore have to review the Application and the supporting evidence to determine whether or not there are reasonable grounds to believe that the persons committed the crimes alleged and that summons be issued for them to appear before the ICC.

If the Pre-Trial Chamber is not satisfied that there are reasonable grounds to believe that the persons committed the crimes alleged, then no summons will be issued.

If on the other hand, summons are issued, then the six persons will be:

  (i)        advised on the date to appear before the Pre-Trial Chamber;

(ii)        provided with specific reference to the crimes which they are alleged to have committed; and

(iii)        provided with a concise statement of facts which are alleged to constitute the crime.

The six will have the right to challenge the admissibility of the cases or the jurisdiction of the Court under Article 19 of the Rome Statute.  If the objections to the admissibility of the cases or the jurisdiction of the Court are upheld, then the charges shall not be confirmed.

If on the other hand the charges are confirmed, they shall be referred to the Trial Chamber for prosecution.

The six persons named in the Application will be classified as “under investigation” only if summons are issued.  As at today, what has been investigated is “the situation in Kenya in which one or more crimes within the jurisdiction of the ICC appear to have been committed.”

Those amongst the six persons who hold public office may therefore continue to hold such offices until and unless summons are issued. 

Article 66 of the Rome Statute provides as follows:-

1.          Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.

2.          The onus is on the Prosecutor to prove the guilt of the accused.

3.          In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

The Prosecutor of the ICC is under the supervisory authority of the Court at all stages of the process including prior to the grant of the authority to investigate.  The Prosecutor’s role under the authority granted by the Court was to investigate the situation in Kenya in order to determine whether or not crimes within the jurisdiction of the ICC may have been committed without directing any accusations against any particular person.  For the first time, the Court is going to consider and determine whether there are reasonable grounds on which to summon any person on the basis of the evidence which until yesterday was not in the custody of the Court.

Going forward, we have, as a Nation, the following options, in no order of priority:

Option 1 under Articles 17 and 19(2) of the Rome Statute:

To establish a credible local process for the investigation and prosecution of the six persons.  This will entail genuine willingness and ability to carry out credible investigations and prosecutions before a Special Tribunal or a reformed Kenyan Judiciary.  The ICC will have to review and be convinced that the local process is credible before they can cede jurisdiction.

Option 2 under [Article] 16 of the Rome Statute:

To seek a resolution of the UN Security Council under Chapter VII of the Charter of the United Nations deferring the prosecutions of the six persons for a period of 12 months.  This Option is only available if the circumstances or situations contemplated under Chapter VII with regard to threats to the peace, breaches of the peace and acts of aggression apply.

(I table Chapter VII of the UN Charter).

Option 3 which is to withdraw from the Rome Statute.  Article 127 of the Rome Statute provides as follows:-

1.          A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute.  The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

2.          A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligation which may have accrued.  Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

Option 4 which is that we let the current process take its own course.

The present circumstances call for calm and unity.  We must exercise restraint and be judicious in our comments about the ICC process.  As we seek justice for the victims of post-election violence we must not visit injustice on innocent people.  We must respect the presumption of one’s innocence until proven guilty beyond reasonable doubt through a fair and open process.  We must seek reconciliation by ensuring that there is justice for all.

Rt. Hon. Raila A. Odinga, EGH, MP
Prime Minister

Thursday, December 16, 2010

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