What you need to know:
- The justice minister argues that the new constitutional order will ensure strong structures to punish violence culprits
A Cabinet Minister has launched a controversial campaign to stop the International Criminal Court from investigating and prosecuting post-election violence suspects.
Lawyer Mutula Kilonzo, who holds the Justice portfolio, claims that trial sought by the ICC chief prosecutor Moreno-Ocampo after he completes investigations in the next few weeks will be unnecessary when Kenya establishes a new judiciary, appoints an inspector-general of police, and installs a new director of public prosecution under the new Constitution.
The minister, whose docket is crucial to obtaining justice for the victims of the violence that broke out after the 2007 General Election, argued: "When these (appointments) are in place, we can say that Kenyan judges meet the best international standards. After that, I can even tell them not to admit the ICC case. Why on earth should a Kenyan go to The Hague?”
But the Minister’s proposal, raised in an interview with the Sunday Nation, drew immediate opposition from the Law Society of Kenya and Government Chief Whip Jakoyo Midiwo.
Law Society chairman Kenneth Akide also disagreed with Mr Kilonzo, saying the new Constitution requires that Kenya respect agreements it had signed, including the Rome Statute that created the ICC.
“The ICC has not been replaced because of the new Constitution,” Mr Akide told the Sunday Nation by phone from China.
He said the judiciary and police were yet to be transformed to effectively deal with post-election violence suspects. He added that, contrary to Mr Kilonzo’s assertion, the judiciary “has always existed, but the country sought ICC intervention because of lack of political will to prosecute the suspects.”
In an exclusive interview, Mr Kilonzo said the administrators of the Hague-based court should know that Kenya now has a “new prosecutorial system and a new police under a new Constitution.
“I’m totally convinced. One million per cent convinced. The case before the ICC has not yet been admitted. It can only be admitted after (ICC chief prosecutor Luis Moreno) Ocampo finishes his investigation.
“I advocate a local tribunal partly because I’m a Kenyan, and I cannot entertain the idea of a foreign court having to investigate a fellow citizen on offences committed against fellow citizens,” Mr Kilonzo said.
“Under Articles 2, 4, and 5 of the new Constitution, we can now tell the world: If we appoint a new director of public prosecution, a new broom will sweep clean,” he said.
He said the Bill on vetting sitting judges and recruiting new ones, which would also look at “their temperament, their history and everything else”, was in place.
Mr Kilonzo, who has been at the forefront of pushing for the prosecution of post-election violence suspects, said the panel conducting the vetting of judges could have access to advice from intelligence services, the police, the office of the Attorney-General, and the Advocates Complaints Commission.
An ICC delegation is expected in the country next week. Mr Kilonzo’s comments come at a time when a more robust ICC process is at play as Mr Moreno-Ocampo appears keen to complete his investigations of key post-election violence suspects by the end of the year.
He is expected in the country in the next few weeks to bolster the ICC investigations. The ICC process was for some time overshadowed by the August 4 referendum, but it is now in high gear after the signing two weeks ago of an agreement to allow the court to set up an office in Kenya.
A section of the Cabinet is unenthusiastic about the ICC, while other ministers are pushing for charges against perpetrators of the violence that left 1,133 people dead.
The ICC’s actions could dramatically affect the country’s political scene as some of those mentioned in connection with the violence harbour plans to run in the 2012 General Election.
Mr Kilonzo said potential witnesses have been given protection in several places, but any trials could be carried out locally.
“My challenge to Kenya is this: You gave yourselves a beautiful gift on August 27. Give yourselves another one by telling the world through the institutions that we created to keep off,” Mr Kilonzo said.
The minister said he was personally unhappy with the way the country had dealt with the thousands of Internally Displaced Persons and that he would have liked a special division of the High Court to deal with the matter.
“Ocampo and ICC cannot solve that. It’s a Kenyan issue,” he said.
Mr Kilonzo has twice presented a Bill to the Cabinet to establish a special tribunal to deal with post-election violence cases, but it was not approved.
Another effort to establish a local tribunal in Parliament was similarly defeated, opening the way for the International Criminal Court to step in.
Having served on the National Dialogue and Reconciliation Commission, popularly known as the Serena Team, Mr Kilonzo also expressed concern that some politicians had rushed to announce their interest in senate seats and governorships “without realising that a huge number of Kenyans are living in deplorable conditions”.
Mr Midiwo said victims of post-election violence want resettlement and justice.
“The ICC was not coming here to force us to do a new Constitution. It came because the government failed its people. What am I supposed to tell my people whose relatives were killed,’’ he said.
Mr Kilonzo’s comments are likely to rub civil society the wrong way as well as other proponents of the ICC who wanted it to speedily deal with the Kenyan case.
Kenya National Commission on Human Rights chairperson Florence Jaoko-Simbiri said the country still needs the ICC, the new Constitution notwithstanding, as Kenya is a signatory to the Rome Statute.
“The country has not only domesticated the Rome Statute; the government has also made commitments to the ICC. I don’t see how the new Constitution prevents the ICC from coming,” she said.“Judicial reforms will take a while before being enacted. It will also take time before changes in police take place to facilitate credible investigations,” Simbiri said.
Nairobi lawyer John Mureithi Waiganjo said the government was mandated to cooperate with the ICC.
“The ICC has to continue with investigations and prosecute the culprits. It is wrong for the minister in charge of Constitutional Affairs and Justice to relate the new Constitution to the post-election violence. It was criminal and an offence against humanity,” he said.
In February last year, Parliament shot down a government Bill to set up a local tribunal to investigate the violence. The Bill sought to entrench the tribunal in the Constitution but was supported by only 101 MPs, far short of the 145 required to amend the law.
In opposing the Bill, MPs cited a lack of confidence in the judiciary and the potential danger that a local tribunal could spark ethnic tensions.