ODM presidential candidate Prime Minister Raila Odinga has recently been saying he would work with the UN and ICC if elected to bring the ICC cases for trial back home.
This view is consistent with his very early on position that these cases should be tried at home.
Indeed, as everyone knows, Raila led efforts to establish a local tribunal to try these cases but these efforts were defeated by MPs against the idea led by none other than William Ruto and those opposed to the establishment of a local tribunal coined the refrain which they sang to no end, “don’t be be vague, let’s go to the Hague!”
Well, they sang the refrain until the bill establishing a local tribunal was defeated.
The same characters once again led by Ruto soon realized they had blundered and started singing to a different tune to the effect “let’s blame Raila for being hauled to the Hague!”
They have been haplessly and shamelessly singing the same tune much the big lie it is because everyone knows Raila has had nothing to do with these now Bensouda 4 being charged at the Hague.
Consistent with his initial position, however, Raila now wants and has promised if elected he will work to have these cases brought home for trial.
As a result of making this commitment, the PM has been criticized by some who wrongly accuse him of not caring about the PEV victims in taking this position or of doing this simply for political reasons.
The truth is neither of this is the case; Raila certainly does and has show compassion and empathy for the victims and even though his decision to call for these cases to be brought back home is not without political implications, the decision itself is not per se driven by political consideration only.
There are a number of reasons why Raila believes these cases should be brought back home and leading among those is his belief and that of many others that these cases should never have been referred to the ICC to begin with but for the stupidity of the likes of Ruto who are now whining that someone else, namely, Raila is responsible for their being hauled to the Hague.
There is also a firm belief by Raila and many others that true closure can only come if these cases are tried and concluded at home instead of some foreign country and jurisdiction essentially coming to our homes and telling us so and so has been bad, bad, bad and must be punished.
We are quite capable of making these determinations albeit with a competent and reformed judiciary which a good case can be made we now have one well underway there.
I have taken the time to respond to a member of a popular Kenyan forum known as Jukwaa who is critical of Raila’s position and re-post here because the member raises a number of issues and concerns I have heard others raise and this is now addressing the issue from purely and entirely my own perspective.
I am sure the PM and his team will in the days and weeks head address the issue as they see or deem fit.
For easy following, I have italicized the critic’s comments, concerns and questions:
Raila has beem making some irresponsible statements, to the effect that these cases can be "brought back home" and that he will work towards that end.
Raila saying these ICC cases can be brought back home and that he will work towards that end is not irresponsible in any way.
Neither Raila nor any politician worth their name in gold can or should ever let the other side exploit an issue to their disadvantage or even doom.
That will be dumb and that’s not to say allowing the opposite to happen, namely, turning the other cheek as one is being slapped with lies and distortions, is morally principled or virtuous; it’s not.
What Raila is doing is effectively removing ICC as an issue in 2013 much as the other side is really riding on nothing but ICC falsely and shamelessly crying victim while blaming Raila for it.
They’ll be shocked at how short that strategy will fall for Kenyans are not that gullible–at least a majority going to the polls won’t be.
It is unfortunate that quite a few seem to be taking these seriously, i.e. taking them for more than vote-getters aimed at gullible Kenyans.
Call it whatever you wish but I have told you and will repeat what Raila is saying and doing about the ICC cases is what any savvy politician worth his name in gold must do in lieu of pleasing the handful or so purists who would demand that he doesn’t much to his assured doom.
Raila has not made clear why he thinks he would succeed where the entire GoK machinery and its fancy QCs failed.
Not necessary to do so but, take it from one purely speculating, if and when the time comes to make that case to the UN or ICC, the case shall be made.
It is important here to recall in its Admissibility challenge, GoK told lie after lie and made empty promise after empty promise. For example, the ICC was given about 4000 names and told that investigations were ongoing and prosecutions would start in Sep 2011. A couple of months ago, Tobiko announced that not enough evidence had been found to try any of those people.
Would the ICC swallow any more stories, even it does not take into account that, far from investigating and prosecuting, GoK has been acting to hinder the process?
Neither Raila nor ODM was any part of the hapless efforts by Kibaki and Co to defer the cases.
A new government bent on doing this will have a fresh crack at it and I can assure you contrary to your adamantly insisting in the opposite, it is, actually, possible to bring these cases back home.
But none of that is actually as important as the very simple fact that the cases cannot be “brought back home” without a second Admissiblity challenge, and GoK will not mount another Admissibility challenge—for the very simple reason that it would absolutely not succeed.
You have said over and over and remain quite stubborn in maintaining the position that efforts to bring these cases back home “would absolutely not succeed” but here you’re simply wrong for one because this can, in fact, happen under the right circumstances.
A quick look at the Rome Statute will show why another Admissibility challenge will absolutely not succeed.
In The Queen’s Counsel For Kibaki On The Ocampo Six Is Doomed To Fail, penned early last year in which I examined this issue of admissibility and deferral, I noted as follows:
It is both a disgrace and insult to our national pride and intelligence to be lectured by the “Queen’s Counsel” more than 48 years after independence about what the Rome Statute says about obtaining a deferral from the International Criminal Court (“ICC). Kenya does not need the Queen’s Counsel much less its own Attorney General to advise her on what the requirements of a deferral from ICC are or what she may need to do to obtain one, given this 11th hour; a good law student or any good student for that matter can easily research and spell this out for free.
This writer has previously laid out what it might take to obtain a deferral given the stature of these cases and to recap, the writer believes the best way to obtain a deferral is for Kibaki to ask Raila to join him in making the request upon satisfaction of the following conditions which are obvious, given the objective of once and for all bringing closure to the question of post-election violence and these are: (1) passage of law in Kenya to impartially try the perpetrators of post-election violence locally, including the Ocampo Six (2) commitment to judicial reforms by time certain and measurable milestones to allow such trials to take place without delay (3) asking the Ocampo Six to step-down from their position pending their trials or otherwise paving the way for an unimpeded investigation and [/i][i]prosecution of the cases before an impartial special tribunal.
Third, on the question of admissibility of the Ocampo Six case, ICC only looks to see if there is a credible ongoing investigation and or prosecution of any or all of the Ocampo Six in Kenya. As of this writing, there is no such a thing going on therefore the Queen’s Counsel advise to challenge the ICC cases on this ground is indeed without basis as the circumstances stand today. Were Kibaki to agree and follow through with the conditions set forth above, including passing a law to try PEV suspects locally, then the ICC might entertain an application at this stage of the game under Article 17(1)(c) of the Statute but any other application is doomed to fail.
The foregoing analysis remains valid the only thing I would add is, time has run out for Kibaki what I suggested in this piece written more than a year and half ago.
That, however, does not mean nothing can be done to bring the cases back home were the new government inclined to do so.
First: Whereas a first Admissiblity challenge is a matter of right, a second one is not. A second one is constrained both in terms of time and on the basis on which it can be made. What’s more, it would require the leave of the court to make such a challenge.
This is an accurate statement of the law about admissibility.
Second: There is no way the court would grant leave for another challenge.
This is an inaccurate assessment of the chances the court would grant such a challenge; you simply have no way of knowing this with this degree of certainty, namely, “no way.”
A better assessment would be it’s unlikely barring compelling circumstances for the court to grant such an application and I can see but no time to go into that now one such a compelling case even though if you have been following my blogs on this, I have made it abundantly clear what that is and in a few words, unity of the country or put differently, not seeking a cure that makes the disease worse.
Here is what the law says:
Article 19(4):The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In [u]exceptional circumstances[/u], the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c).
Again, an accurate statement and citation of the law on this.
We can have a debate on what "exceptional circumstances" Raila, or GoK, or anyone else might have in mind; but with trials already scheduled to start in a few months, attention should be paid to the last sentence in 19(4).
Article 17(1)(c):The person concerned has [u]already been tried[/u] for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.
In other words, it is not enough to merely claim that they [u]will be[/u] tried back in Kenya. (And, by the way, some fake “white-washing; trial would not fool the ICC judges or anyone else.)
I refer you to what I have said above about this.
Raila is a politcian. As part of his "political DNA", he lusts after power, at the highest possible levels, as all politicians do.
You’re obviously entitled to your own opinion but others including yours truly would beg to differ that Raila “lusts” for power and neither do we hold the view that “all” politicians lust for power.
There is a difference between “lusting” for power and seeking and preserving power.
The former denotes something cynical, unhealthy and undesirable while the latter is all about what politics is and should be about.
And, of course, his supporters, fulfilling their "job description" as supporters, think he is the person most deserving of the most power (as do Uhuru’s supporters of Uhuru, Kenneth’s supporters of Kenneth, etc.). Nothing fundamentally wrong with that. [u]But[/u] the ICC process has, unfortunately, been politicized enough and more than enough and then some. At this stage, gratuitous "additions" are neither necessary nor helpful.
I refer you to what I have said above regarding what the right thing is for a politician to do in the face of an issue being exploited to their detriment.
To the extent that anyone still believes that the cases can be "brought back home", the key question to answer is “how exactly?”
I have already laid out the conditions under which these cases could be brought back home in the piece referenced above and parts of which I have cut and pasted here.
Although I have also noted time has run out for this to happen, I can still see the possibility of bringing these cases home under these circumstances:
First, we have an open and transparent election come 2013.
Second, we have a president elected with a majority in the National Assembly that genuinely seeks justice and an end to this dark saga of our country’s history.
Third, the president and National Assembly move quickly to pass a law establishing a local tribunal to try these cases at home.
Fourth, the law is enacted.
Under these circumstances, I can see a successful petition being made to the ICC to relinquish jurisdiction under Article 17(c).
It is not true as you claim that a suspect who is the subject of the deferral mut have been tried for a case to be inadmissible on this basis; what you have done as many do is read and run with one part of the law while ignoring another pointing another direction.
Article 17(c) you have cited provides an absolute bar of ICC jurisdiction over a case that has already been tried. (This is the doctrine of double jeopardy as applied in the Rome Statute)
Article 17(1)(a), however, provides that admissibility can be challenged and had on the basis that the case “is being investigated [b]or prosecuted[/b] by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”
In addition to what I have noted above, there are a number of other arguments to be made to make a compelling case for the ICC to relinquish jurisdiction and I have no doubt such a strategy would involve the UN behind the scenes leaning on the ICC to do the right thing–were the circumstances to so warrant.
In a nutshell, this is the answer to your question how these cases can be brought home.
Anyone who does not have or will not give even the outlines of an answer should stay off the subject. (Yes, that’s for Raila.)
Is it really necessary to say this?
The ICC is the best place to try these characters, and all upright Kenyans are fully behind the ICC trials.
This is an unnecessary besmirching of those with valid views and take the position these cases should be tried at home.
It doesn’t mean one is upright or crooked merely by taking a position on this question people can take either position without any ill-motive or intent.
So, let’s stop the side-shows and get on with it.
There is no side-show here; what we have and should have is a robust debate as to the meaning and implication of these ICC cases.
No one has the right and only correct answer or take but it’s through informed debate people can assess and come to terms with this very sensitive issue.