Kibaki’s Continued Efforts to Defer the ICC Case is Doomed to Fail Without More
As previously noted, any of the five permanent members of the UN Security Council can defeat Kibaki’s effort to defer ICC’s prosecution of the Ocampo Six. Three of the permanent members, US, UK, and France have categorically stated they will oppose therefore defeat any efforts to defer the prosecution at the UN. What then is Kibaki and his cadre’s objective for this so called lobbying? Again, as noted before, there cannot be any good reason for these continued efforts as far as the country is concerned. A local daily now postulates that all this is about keeping Muthaura in check so as not to spill the beans against the President himself. That’s obviously not a basis to defer the ICC trials.
As one who from the very beginning never believed that anyone other than those who in fact committed criminal offenses should be prosecuted by ICC for events that occurred post-election, including the Ocampo 3 (Uhuru, Muthaura and Ruto), I find these efforts to lobby the UN against these odds totally a waste of time and money. I certainly do not believe as others do that this futile exercise is nonetheless intended to lay the foundation to defy the ICC.
The sensible approach to address post-election violence (PEV) has to be faithfulness to, or at least the absence of efforts to frustrate implementation of the new constitution and when that is done or at least when there is an appearance it is being done, then ICC can be persuaded to allow the establishment of a local tribunal to try these suspects who should be acquitted either at the Hague or in Kenya unless they in fact committed criminal offenses.
So, my suggestion has been and continues to be Kibaki needs to sit down with Raila and map this thing out in the interest of the country but to do so would require great courage from Kibaki as he will be afraid of being accused of caving to Raila who is not liked very much by those hard on pushing this reckless course of setting grounds to defy the ICC. The 3 things Kibaki and Raila can agree on tomorrow and easily diffuse this time-bomb are (1) immediately create new law to allow for local prosecution of the perpetrators of PEV, including the Ocampo Six (2) asking Uhuru and Muthaura to immediately step-down from their respective positions (3) recommit to immediate and substantial judicial reforms, including vetting of judges and the two leaders consulting and agreeing on the appointments of the Chief Justice, AG and DPP and (4) working together to defeat any efforts to frustrate or impede implementation of the new Constitution.
Given Kenya’s reputation for evisceration of political MOUs, however, such an agreement should be witnessed and signed by Kofi Anan. With this done, this writer is confident the two principals, Kibaki and Raila can go to the UN with a credible case for a deferral not based on the current bogus reasons. Needless to say, taking this approach has pitfalls for either of the principals, especially in the succession politics but that should be deferred to be dealt with another day.
If a deferral is sought and approved under this conditions, then two things come to mind that must happen: First, after immediate passage of a law setting in place a mechanism to try the PEV suspects, including the Ocampo Six, a special tribunal court must be constituted immediately comprised of eminent judges preferably from outside the country to try the cases.
Second, the new PEV law must provide that for those who cannot be convicted of criminal offenses, especially the Ocampo Six, they can still be tried in civil courts if the evidence establishes that they contributed to PEV but the evidence is not sufficient to warrant criminal conviction.
There are four good reasons for providing intermediate punishment in the form of civil penalty and these are (1) anything other than trial and punishment of the Ocampo Six and other PEV perpetrators will be seen as impunity gone amok (2) on the other hand, the alternative civil punishment would provide a way out for those desperately bent on defying the ICC regardless of the consequences upon the nation, given fear of going to jail at the Hague is Motivation Number 1 and perhaps the only reason why going to ICC is being fought so doggedly by Kibaki in their behalf (4) and more importantly, a civil penalty, if that’s all that is obtained against some of these suspects (assuming the other get jail time) is so much the better for the country as it is a form of accountability and punishment which should satisfy the victims of violence and bring closure to this matter once and for all.