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On the Kenya govt ICC case

Posted by on 7th June 2011

Categories: ICC Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

On Monday the pre-trial chamber ruled unanimously that the government had not embarked on any investigations and dismissed the Kenyan Government’s case. Earlier in the year after the expensive failure of shuttle diplomacy, the government made application challenging admissibility of the two Kenya cases at the International Criminal Court. The grounds of challenge were that Kenya is on the path of constitutional and judicial reform and can therefore investigate and prosecute those most culpable for the post election violence.

In evidence of this the government’s application had as annexures:

  • A letter from the Attorney General to the Police Commissioner asking him to investigate and determine the identities of those who masterminded the violence.
  • A list of concluded cases which related to crimes during the post election violence,
  • The promulgation of the new Constitution,
  • The number of Bills that had been enacted by Parliament to reform the judiciary, the police and the Department of Prosecutions.

In my opinion these 4 elements were probably the strongest part of the governments case but also most the problematic. As well as revealing of weakness not only in the claim of ongoing reforms but also to the claim that Kenya is as a result of the reforms ready willing and able to investigate the six ICC suspects.

The letter from the Attorney General to the Police Commissioner ordering him to investigate the crimes was written the day after and the government filed its case. Which makes me wonder about the political will to investigate the masterminds of the election violence considering the crimes took place more than three years. Regarding the list of concluded cases relating to post election violence it would be interesting to see where these have been reported? The Pre-trial Chamber stated that the government ‘failed to provide the Chamber with any information as to the conduct, crimes or incidents for which the suspects are being investigated or questioned’

We did promulgate a new constitution however the implementation has been slow at best and fraught with inter-party wrangles, missed deadlines, and confusion over interpretation. So though the constitution was promulgated given the pace of implementation and the seeming roadblocks and confusion at every stage it will be a while before reforms realised. As far as the number of the Bills of enacted, its amazing that this was a submission to support the fact that Kenya can try the ICC cases considering when only two constitutional bill had been passed at the time of the application.

Of course the AG has already stated Kenya’s intention to appeal the decision, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence, though on the points on which the appeal will hinge are unclear. Either way, the government has five days to launch the appeal.

Report from the Media Roundtable

Posted by on 30th April 2011

Categories: ICC

By Mzalendo Reporter – Moreen Majiwa (@mmajiwa)

This was my second visit to the media roundtable on media reporting on the ICC at the Alliance Française. The panellists this round were John Mwendwa of K24, Alex Chamwada, Evelyn Kwamboka and Harun Ndubi the only non-journalist on the panel.

The media round tables are intended to generate debate around media coverage of various issues and enhance media accountability.  In an environment in which accountability and transparency are like gold i.e. scarce, it is admirable that members of the media establishment would hold public forums that open them up to scrutiny of the sharp-eyed public.

While it is generally agreed that the media’s coverage of political issues has improved since the coverage of the 2006-2007 election campaigns, election chaos and ensuing post election violence it was evident at the roundtable that the media establishment still faces a storm of criticism over its informative yet sometimes mishandled coverage of the trial of the 6 ICC suspects.

From the roundtable the consensus seems to be that despite the improved quality of coverage of the ICC, the media has once again succumbed to the politics of the day, negative ethnicity, and is currently being manipulated as tool for 2012 campaigns.

The result – while media is doing well the performance of its duty to convey information to Kenyan’s on the ICC process, it is doing less well in its duty to propagate truth. The impact – media coverage of the International Criminal Court (ICC) trial is skewed heavily towards what the ICC means for different politicians, what it means for political careers, what it means for the future of political parties as opposed to what the ICC process means for justice, and its implications for a just prosperous Kenya.

It was however acknowledged it would be difficult to divorce the coverage of the ICC trial from politics given the context.  5 of the suspects are prominent political figures, 2 of the suspects are also members of the Cabinet, 3 are also members of parliament, and 2 of the six have declared their intention to run for president in 2012.

Another issue that was raised was the issue of ownership of the media – who owns the media outlets? What personal, professional and financial ties do media owners have the various persons in the political establishment?  How does this impact direction of stories carried by the media, and affected the media’s ability to hold politicians to account.

It may be simple to point an accusatory finger at the media over its coverage of the ICC suspects, however, in this instance it would also be fair to acknowledge that the media does not have the easy option of covering just the ICC 6 san politics…instead it faces hard choices  on whether and how to do this.

Several suggestions were proffered –  contextualise coverage;  to hold political actions, and actors to the values that Kenyans aspire to see in their leaders i.e. those enshrined in Chapter 10 of the constitution;  constantly provide the historical background to how the 6 came to be before the ICC; and  juxtapose politicised rhetoric about the ICC process with real facts.  It still remains to be seen if status quo in media content will remain or if it will change.

ICC Process – Issues of Framing and Voice

Posted by on 24th April 2011

Categories: 2012 Elections ICC

By Mzalendo Contributor Moreen Majiwa (@mmajiwa)

As the din grows louder, and the lines between the issues of the ICC case, impending elections, halting implementation of the constitution increasingly become subjects used for political fodder we need to ask:

Who is framing the issue? How are they framing it? Whose voice is the loudest? And which voice are we listening to? And what is the reality?

With a well-orchestrated political campaign masking itself as a prayer rally two of the ICC suspects Deputy Prime Minister/Finance Minister Uhuru Kenyatta and North Eldoret MP William Ruto have managed to capture the issue of the ICC case and frame it to their advantage.

The almost full day, non-stop press coverage of the political rally by most of the TV stations and newspapers has helped this process of capture along.

Yes the coverage of the Uhuru Park rally has been juxtaposed with the stories of still to be resettled IDPs, but if voice is measured in amount of air coverage, or in column inches whose voice is louder, the IDPs or the MPs who attended the Uhuru Park rally? While the suspects remain innocent till proven guilty, the record does need to be set straight about how those at the rally framed the issues.

Issue 1: The return of the suspects was framed as a return of conquering heroes. I leave the definition of hero up to you but the truth is there was nothing to conquer. There was no danger of the suspects being arrested, this around at least. The suspects’ visit to the ICC was in response to a summons to have the charges formally read to them and for the suspects to formally identify themselves to the court.

Issue 2: The ICC and the court process are being likened to the colonial process with constant reference to the judges as ‘wale wazungu’. However the ICC process is nothing like colonization.  Kenya is a voluntary signatory to the ICC statute, a statute that was domesticated in 2008 when parliament enacted the International Crimes Act Cap 16 of 2008.  The freely enacted statute both binds Kenya to the Rome Statute and criminalises wilful attempts to obstruct justice of the ICC (Section 5 and 10). Ironically several of the parliamentarians on the podium at the Uhuru Park were also part of the Parliament at the time when the Rome Statute was made domestic law.

Issue 3: Reconciliation: Some of the MPs at the rally adopted a conciliatory tone.  However as with everything that is said the true measure of reconciliation is the gap between the rhetoric and the action. Between 2007/2008 when the post election violence, how many IDPs have been resettled? How many are still in camps? How many  refugees does Kenya have residing in Uganda? Have IDPs been able to return their homes?

I read somewhere that Rwanda confines its political campaigns to one month before the elections as politicking in Kenya seems to be taking an increasingly destructive tone maybe we should consider doing the same.

Deferral, referral, challenge to admissibility are we confused yet!?

Posted by on 24th March 2011

Categories: 2007 Elections 2012 Elections ICC

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Yesterday the Attorney General Amos Wako plainly stated that the ‘shuttle diplomacy’
had been a failure after a several permanent members of the United Nations Security
Council (UNSC) said that the Kenya case did not meet the threshold for a UNSC
resolution for a one-year deferral of the its ICC case against the six suspects.

So what now? The government has appointed a Queen’s Council and Barrister-at-law to
challenge the admissibility of the Kenya case at the International Criminal Court (side
note: are there no qualified Kenyan lawyers that could challenge admissibility at the ICC,
first the hiring of the foreign firm manage social media and now lawyers to defend the
ICC case?).

According to the Rome Statute a challenge to admissibility can be made under Article
19 by either by an accused person for whom a warrant of arrest or a summons to appear
has been issued under article 58, or by ‘a State which has jurisdiction over a case, on the
grounds that it is investigating or prosecuting the case or has investigated or prosecuted’
or by ‘a State from which acceptance of jurisdiction is required under article 12’.

The third option is not open to Kenya since the country is a signatory to and has
domesticated the Rome Statute. So the only grounds left on which the state/government
can challenge admissibility of the case is on the grounds that it is investigating or
prosecuting the case or has investigated or prosecuted the case. But this raises a few

Considering a considerable amount of tax-payers money has already been wasted on
shuttle diplomacy and there has been no consultation with the people of Kenya as
to whether they want to use even more of their tax shillings to hire foreign counsel to
challenge admissibility – why can’t the six suspects for whom summons to appear has
been issued challenge admissibility in their individual capacity under Article 19 (2)? Why
should state resources be spent to challenge admissibility of case?

Another issue with the challenge of admissibility is requirement for the government to
show that it is investigating or prosecuting the case or has investigated or prosecuted.
Notice the tense requires that the investigations or prosecutions be underway or already
completed at the time when admissibility is being challenged. Now I may be wrong
but to my knowledge there is currently there no evidence to indicate that the state is
investigating or prosecuting any of the six suspects.

So is this challenge to admissibility another exercise in futility considering that there is a
slew of judicial reforms that needs to occur before the state/government can even begin to
mount a processes that will be seen as credible and legitimate?

The Summons

Posted by on 12th March 2011

Categories: 2007 Elections ICC

By Mzalendo Contributor – Moreen Majiwa
On Tuesday this week the Pre-trial Chamber of the International Criminal Court issued
summons ‘to appear’ for the six persons deemed most responsible for the post election
violence of 2007/2008.

The summons were issued in two separate cases the first against Francis Muthaura
(Cabinet Secretary), Uhuru Kenyatta (Deputy Prime Minister/Minister of Finance), and
General Hussien Ali (Post Master General).  The Chamber found reasonable grounds to
believe that Francis Muthaura and Uhuru Kenyatta could be criminally responsible as
indirect co-perpetrators (committed crimes through other persons Article 25 (3) (a) of the
Rome Statute) for crimes against humanity specifically murder, forcible transfer, rape,
persecution and other inhumane acts.   They found the no reasonable grounds to believe
that General Ali was an indirect co-perpetrator, but found that he could be responsible for
contributing to crimes under Article 25 (d) of the Rome Statute (i.e. that he contributed to
the commission or the attempted commission of crimes by a group of persons acting with
a common purpose).

In the case second case which is against Henry Kosegy (Industrialisation Minister),
William Ruto (Suspended Minister of Higher Education) and Joshua Arap Sang the
Chamber found reasonable grounds to believe that William Ruto and Henry Kosegy
could be criminally responsible as indirect co-perpetrators in accordance with Article 25
(3) of the Rome Statute for crimes against humanity i.e. murder, persecution and forcible
transfer. The chamber found that though Joshua Arap Sang contributed to the crimes in
accordance with Article 25(3) (d) but that there were no reasonable grounds to believe
that was a co-perpetrator.

The two decisions are both 24 to 25 pages long with plenty of ‘legalese’ but definitely
worth the read.  There’s a shocking quality to seeing the reasoning process that led up to
the issuing of the summons against the six named suspects starkly outlined in black and

All the six suspects are now required to appear before the Pre-trial Chamber on April 7
for an initial appearance. This step is likely to be followed by a confirmation of charges
hearing, after which the court will decide whether or not the suspects should stand trial.

At this stage it is essential to remember that issuance of summons is not declaration
of guilt but rather finding that on the evidence provided by the Prosecutor there is
reasonable grounds to believe that one or more crimes presented in the Prosecutor’s
cases were committed, and further that there are reasonable grounds to believe that those
named could criminally responsible for the crimes.

Amidst the issuance of summons the standoff between ‘the government’ (the government
in quotes because the government is not unified on this issue) and the ICC continues. The
shuttle diplomacy seems to be going ahead unabated by dissent by certain members
of government, Kenyan citizens and the United States’ reiteration that it will not be
supporting the government’s deferral bid to the United Nations Security Council.

Following the Vice President’s visit to the United States, the Deputy Secretary of State
this week declared that the USA ‘does not support a UN Security Council resolution
to defer Kenya’s ICC cases.’   However not to be out done the government will now
challenge the admissibility of the two cases in the ICC, but that’s a different blog.

Deferring Kenya's ICC case – why waste taxpayers money?

Posted by on 9th February 2011

Categories: 2007 Elections 2012 Elections ICC

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Intense lobbying by the Vice President for African Union (AU) support for deferral of Kenya’s ICC case seems to have yielded results. Last week at the AU summit, support for the deferral was resounding Kenya gained the backing of both the Executive Council (AU ministerial level) and the General Assembly (AU Heads of State Level).

However the AU’s support for the deferral of the Kenya case is unsurprising. The AU made a similar request for deferral in the Sudan case after the UN Security Council referred situation in Darfur to the Office of the Prosecutor (OTP).  Of course, the circumstances are slightly different.  In the case of Sudan the AU Peace and Security Council requested deferral after the OTP submitted its ‘application for the issuance of the arrest warrant’ against Sudan’s president, citing that the timing of the request for arrest warrants could jeopardize the ongoing Darfur peace process.

In Kenya we’re still at the summons stage, no application has been made for the issuance of warrants, and our peace process (if it can be called that) was completed in 2008.  It is worth noting however that despite an ongoing peace process and active violence in Darfur the Security Council still rejected the AU ‘s application to have Sudan case deferred. So what are Kenya’s chances and what are the requirements for deferral of Kenya’s case?

The clause the government is relying on to make its case for deferral is Article 16 of the Rome Statute which provides for postponing investigations or prosecutions for a period of 12 months on the adoption of a Security Council Resolution taken under Chapter VII of the UN Charter. (Side Note: Why is parliament trying to use the very same statue it is planning to pull out of to defer its ICC Case?)  Chapter VII of the UN Charter would allow the UN Security Council to defer a case to ‘maintain or restore international peace and security’ if it determines the existence of any threat to the peace, breach of peace or act of aggression. Chapter VII resolutions are rare and tend to be used only in extreme circumstances.  So far in the case of Kenya, there is nothing to indicate that the continuation of the ICC proceedings would create a threat to peace and security as envisioned by Chapter VII of the UN Charter.

Furthermore,  Kenya would require the support of if 9 of the 15 members UN Security Council and the support of the all the permanent members. One veto by a permanent member (China, France, Russia, UK and US) of the Security Council would result in refusal to defer the case. Plans are currently underway to lobby the members of the UN Security Council to support the deferral with a special Cabinet team being set up to taken on the task.

One of the main reasons given by a certain section of government officials for deferral is the reform of Kenya’s judiciary and Kenya’s ability and willingness to now try the 6 ICC suspects. However Article 16 of the Rome Statute is clear as to the circumstances that warrant deferral, ‘reforming’ is not one the criteria.

As it stands deferral seems unlikely, and this begs the question what is the true motive behind spending millions of taxpayers shillings on a process that is unlikely to succeed?