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What ICC Outcome Means For Kenya

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In What ICC Outcome Means For Kenya, published in the Star today, I revisit the ICC issue and analyze it from an historical and comparative perspective and make the case we should not seek or desire a solution that makes the situation worse than it is. I in particular urge all Kenyans and in particular the victims to be prepared to forgive and move on for it’s unlikely there will be an outcome from these trials that satisfies all to the same level of satisfaction.

In other words, in order for justice to be deemed as having been served, both Uhuru and Ruto must be convicted.

If one and not the other is acquitted while the other is convicted, we’ll have a situation as often occurs in medicine where the cure is worse than the ailment in the sense that this will worsen the already bad blood between two communities in particular while dividing the country as a whole as others take side.

On the other hand, if both or all suspects for that matter are acquitted, many will cry foul or at least see the whole ICC things as a joke or meaningless.

I have in the past argued that these cases should be brought back to Kenya and set up a system for the victims to be tried for regular crimes they may have committed under the Penal Code and if not convicted under the higher threshold of proof for criminal conviction, they can be tried under civil law and if found liable be required to pay monetary compensation to the victims.

After these two suspects, namely, Uhuru and Ruto had the audacity to basically flip the whole country and, indeed, the whole world and declared that they will seek both the presidency and vice-president as the respective candidates for those positions under their recently formed so-called Jubilee coalition, I have changed my mind and now hold the view let these trials go on at the ICC and let these two be convicted if anything to show it’s the law and respect of others’ human rights which is paramount, not them.

Put another way, if in the past one could have assessed the evidence and found it possible to go either way in terms of whether to convict or not, these in your face “we are too important to be bothered with these trials we deem to be a nuisance and nobody can tell us otherwise” attitude must tilt the scale in favor of convicting them just so they know and understand they are not.

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Posted by on December 8, 2012 in Politics

 

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President Kibaki’s Quest For Second Round of So-Called Shuttle Diplomacy To Defer ICC Cases Is Doomed To Fail

According to  Standard Online, Kibaki is bent on starting another round of the so-called shuttle diplomacy to bring the ICC cases back home for purported trial.

Just as similar efforts were ill-advised before and miserably failed accordingly at the expense of depleted public funds, so too will this new round fail.

To be sure, the Rome Statute provides under Article 19 that the State can challenge the admissibility of any case but only once, which Kenya has done already and lost.

To mount another challenge of admissibility, the very court which confirmed the charges must give it permission to do so, which is highly unlikely, given the government has done nothing to advance the argument termination or deferral is warranted.

The reasons the president cited the other day during the post-confirmation press conference simply don’t cut it as they are general and none specifically even as suggest the government is serious about pursuing these cases locally and that’s why it’s very unlikely and, in fact, certain that the second efforts to defer will fail.

Indeed, the government’s efforts must surely fail because the government can only seek permission of court to challenge the admissibility of the case beyond the one time allowed, only under Article 17(c) of the Statute, which provides that such application be based on the fact that “The person concerned has already been tried for conduct which is the subject of the complaint” and even then, ICC may still maintain jurisdiction if the trial is found to be a sham.

Although I have been a proponent of these cases being brought back home, the time to do this has passed now that the charges have been confirmed so the ICC process must be allowed to continue full steam to its conclusion.

Any further efforts to thwart the process must be viewed as an effort to shield the suspects and perpetuation of impunity contrary to the letter and spirit of the constitution with the ultimate outcome being denying the PEV victims the justice they deserve in addition to prolonging this sad and tragic chapter of our history.

 
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Posted by on January 25, 2012 in Law, Politics

 

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Prime Minister’s Statement on ICC Decision

NAIROBI, Monday 23rd January, 2012 at 1700Hrs

The Prime Minister has taken note of the decision made by the International Criminal Court at the Hague on Monday, January 23rd 2012.

As it is now, it is important for all Kenyans to await the final outcome of the process. Indeed the Kenyan Nationals before the Court are still innocent.

The Prime Minister hopes that the final outcome will deliver justice to both the Kenyan Nationals before the ICC and the victims of post-election violence.

In the meantime, the Prime Minister appeals to all Kenyans to remain calm and peaceful.

END

 
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Posted by on January 23, 2012 in Politics

 

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Kibaki Says He Has No Confidence In Attorney General Githu Muigai To Advice The Government On ICC

President Kibaki at press conference today.

In an unprecedented and unexpected move, President Kibaki announced at a press conference today that he has ordered Prof. Githu Muigai, a man the president basically flipped the public the middle finger and appointed as as his Attorney General, to advise him on how to proceed regarding the ICC ruling.

This is not only an unprecedented and unexpected move, it is basically comical, if it was not about a serious matter.

How can the president order the Attorney General to constitute a team to advise him on a matter any competent lawyer can take about 5 minutes to tell him what the government’s options are and 3 of those minutes will be spent on pleasantries about the weather, traffic or whatever people who meet the president for the first time must awkwardly try to say before having their minute with the president to state their plea, if assuming the lawyer was plucked off the streets on Harambee Avenue and is unknown to the president?

Is there any doubt the first and obvious thing the president must do consistent with the letter and spirit of the constitution, is to ask both Uhuru Kenyatta and Francis Muthaura to immediately step aside, if not altogether tender their resignations?

Beyond that, what other options there are, depend on whether we are talking about the government and for that matter, the people’s interests or the narrow political interests of the president.

As far as the government and therefore the public interest is concerned, the president must pledge his continued, unequivocal and unconditional cooperation with the ICC in all these matters.

The president alluded in his speech that he still clings to the hope that these cases can be brought back to Kenya for trial but, unfortunately, the reasons he cited are just not enough to convince the ICC that the country now has what it takes to pursue justice for the PEV victims as well as bringing closure to this tragic chapter of our history.

The time to have done all of this, is in the past.

That’s is not to say the reforms the president cited have not occurred, they have but not enough to overcome the widespread believe none of the suspects cannot circumvent the system for a desired outcome, and that is a verdict regardless of the facts.

If the president wants to embarrass himself and the country with yet another shuttle diplomacy, let him do so but that would be tantamount to flipping the country the middle finger again but this time with far more serious consequences in as far it would reverse what progress he has made in redeeming his legacy.

The more than 1000 people who died and the thousands who are still displaced due to PEV and equally important our resolve to be a country that respects the rule of law is far more important than protecting the interests of a handful of individuals, who may or may not be guilty as charged.

The fact that these serious charges have now been confirmed, however, means that the least that can be expected of them, is not to hold public office until and unless these matters are addressed to a conclusion.

In other words, even though these individuals’ guilt or innocence has not been adjudicated, the very fact that the charges against them have been confirmed goes to show they are at least not innocent and therefore there is reason to find out why or why not.

That’s what trials do, namely, not necessarily to exonerate the innocent–that usually should occur before the charges are confirmed, but to determine whether or not the charged are guilty beyond a reasonable doubt.

A finding of not guilty is not necessarily a finding that one is innocent of the charges leveled against them; it merely means the government could not prove beyond a reasonable doubt that they are innocent.

Other than arguably Kosgey, every one of the Ocampo Six suspects did something that resulted in PEV and the ICC prosecutor charged them as being the most responsible for the violence, displacement and deaths of PEV victims.

The question is, is what they did rise to the level of crimes against humanity and can the ICC prosecutor prove that case beyond reasonable doubt.

It would therefore defy logic and even common sense to say anyone being charged with these serious crimes can be left to hold office pending trial when Deputy Justice Nancy Baraza is literally about to be run out of town for merely pinching someone’s nose, if she did and even if its over the more serious charge of brandishing a gun, it still pales in comparison to the crimes the Ocampo 4 now must face the prosecutor to answer at trial.

It would be hypocrisy of the highest order and an unacceptable major flipping of the middle finger against PEV victims and the country at large for anyone to try and come up with any reason justifying these two individuals, Uhuru and Muthaura, remaining in office pending trial.

There is little doubt the president’s announcing that he is forming a legal team to advise him what to do, is an effort to buy time in the hopes of coming up with another unprecedented and presently unimaginable move to stall or wish away public thirst for an end to impunity or at for at least commitment to seek justice for PEV justice but such efforts is merely stalling the inevitable and that is, Uhuru and Muthaura must step aside or the president will seal his legacy as one who put a blind fold on his eyes and refused to see the tears in the victim’s eyes crying for justice and the anguish of the many others who are still suffering from PEV.

That putting on those blinds is for the benefit of the president’s narrow political interests, is more so the reason he should remove them and do the right thing for no amount of serving personal political interests can ever be greater than at least even an effort to ensure those who died, did not die in vain and those suffering cannot continue suffering even more simply because of serving those narrow political interests.

The right thing for the president to do, is simply to ask Uhur and Muthaura to step aside pending trial and cooperate with ICC to the extent possible.

Peace, Unity and Truth

Omwenga

 
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Posted by on January 23, 2012 in Politics

 

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What Outcome Kenyans Should Expect Out of the International Criminal Court On PEV Cases

In the article below published by the Standard Online, I share the same views I expressed in my Open Letter to President, Pre-Trial Division, International Criminal Court at the Hague.

In ideal circumstances, ICC judges are called upon to dispassionately apply the law to the facts established by the record before them or those proven at trial.

Unfortunately, however, the cases against the Ocampo Six are not ideal for judges to do this, which means decisions the judges make, including whether to confirm the charges or not or outcome after trial, must be informed from not just the law and facts, but also drawing from other considerations.

The preamble to the Rome Statue under which the ICC operates states in part that “all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time.”

Justice for victims

What is equally true but not reflected in the preamble, and therefore not an integral part of ICC jurisprudence, is the fact that there are idiosyncratic factors peculiar to any given culture not present in any other and therefore must be taken into consideration in initiating and adjudicating cases before the ICC separate and apart from those that cross all cultures.

Tribalism, a vice and stable feature in Kenya is one such an example.

To be sure, tribalism exists in other countries, including Rwanda where the ICC has, and continues to play its role in seeking justice for the victims of genocide in that country that occurred back in 1994.

However, even though that violence was primarily between two tribes, the Hutus and Tutsis, the level of hatred between the two tribes and underlying reasons for the hatred and ultimately reasons for the genocide is different from the hate or underlying reasons for what happened in Kenya in early 2008 and the reason the Ocampo Six cases are at The Hague.

It is important to understand that distinction for no outcome can be rendered with respect to the Ocampo Six that would be deemed justice or otherwise accepted by all concerned, unless these underlying reasons are taken into consideration.

Rather than going into a detailed exposition to analyse and/or explain these underlying reasons, it is sufficient to say, and there is enough in the record to reach this conclusion, and that is, the dynamics that resulted in the post-election violence in Kenya. There was evidence the elections that took place in Kenya in 2007 were rigged and this created an environment where violence took place not to exact revenge for the perceived wrong-doers in the flawed elections, but to settle old scores primarily between the Kalenjin and Kikuyu.

Those scores, unfortunately, have everything to do with land and not the elections of 2007.

As long as the land issue is not addressed to the satisfaction of these two communities, no outcome other than the non-trial or acquittal of both Uhuru Kenyatta and William Ruto is going to be seen as fair or just in their respective communities.

THE LAND QUESTION

At the same time, the trial and conviction of either and acquittal of the other will be seen as unjust in the eyes of the community of the one convicted and, therefore, foment even more tribal tensions between these two communities and be worsened only by the joining in of the rest of the country’s communities likely to ally with one or the other as a matter of political and tribal necessity.

That especially depends on whether such acquittal or conviction occurs in the heat of the campaign period in the country later on this year.

This is obviously a dilemma that the ICC court must resolve in the national interest of Kenya and, given where things are today, that certainly must be committing the cases to trial, to at least get the story right as to what happened and either convict both of these individuals or acquit both.

STATUS QUO

Not confirming the charges against the two, namely, Uhuru and Ruto, or acquitting both will leave the matter in status quo until the communities themselves successfully tackle the issue with the help of the national government, led by the next president to be elected later this year.

Such an outcome would not change the fact that the very prosecution of these Ocampo Six has forever changed Kenya in that we are unlikely to see anything even remotely close to what happened in 2008 because Kenyans know we are on a path to ending impunity locally and internationally. ICC is there to ensure no one even attempts to engage in crimes against humanity, let alone genocide.

I have previously proposed that a mechanism be put in place to criminally try the same suspects at home for common crimes requiring less rigorous proof as does conviction under the Rome Statute (ICC) but also pass laws to allow for civil trial to hold those charged civilly responsible for their offenses, if proven under the generally less exacting civil code, in the event they are acquitted in their criminal cases for lack of evidence or other reasons, including unwillingness to convict or tempering with the process.

Peace, Unity and Let’s Put PEV Behind US

Omwenga

 
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Posted by on January 9, 2012 in Law, Politics

 

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Reconfirming My Position on the Ocampo Six And Why I Think All Six Walk, Or At Least 3 Do

The following is my response in other fora to two individuals who is mistaken that I have been inconsistent in my views on ICC and the Ocampo Six.

You are both operating on a false premise.

First, it does not mean one is right only if they stick to their original positions regardless of changed circumstances or availability of new information. Using that, namely, rigidity to original positions taken as a measure of consistency or right or wrong is wrong.

Second, if you read my legal analysis of the ICC case against Ruto in my blog “Who Is William Ruto” at http://omwenga.com I penned back in April, you’ll clearly see I conclude in that blog that Ruto will walk from the Hague. I also conclude Kosgey and Sang will equally walk because their defenses are closely related to Rutos.

I noted in that analysis that I did not analyze UK, Muthaura and Ali’s cases but I clearly hinted they, too, may walk on at least one technical defense I discuss in the blog.

I have also been very consistent in saying none of the Six will ever see the inside of jail in these cases.

You will note in the analysis, I left it open as to when Ruto, Kosgey and Sang (RKS) walk: before the confirmation, or after trial.

After the confirmation hearings for RKS, I blogged that their charges will be confirmed. This is because they did not attack the prosecutors case in a manner that would essentially result in dismissal of the cases against them.

In my blog yesterday, I allowed that one of the six may not have their charges confirmed and I can tell you now that’s Sang because I gleaned from the Ocampo interview that he bodged in the documentary presentation of Sang’s case.

That does not mean he is forever free, if he walks on this ground for he can be recharged with new evidence.

However, I maintain that all three walk after trial because of the defenses I discuss in my analysis.

The all three or each individually get nailed, of course, if they don’t mount the defense or others to overcome the charges.

It’s not unheard of or uncommon for defendants to be nailed for failure to raise a defense or effectively challenge a case and neither is it unheard of or uncommon for a prosecutor to loose a sure case for failure to effectively prosecute or simply by being overpowered by the defense or by simply fumbling a solid case.

These things happen very routinely and the Hague is no different.

Regarding UK, Muthaura and Ali (UMA)–no pun intended, the charges against all 3 will be confirmed.

As for the outcome at trial, I can’t really call it as authoritatively as I have the other three because I have not thoroughly analyzed their cases as I have the other.

I do see parallels in some of the defenses between the two groups of cases which can result in acquittal of UMA but that remains to be seen as to (a) they raise them and (b) how effectively.

Yesterday, I blogged as follows:

Ocampo is a good prosecutor but brilliance is not usually associated with prosecution; a prosecutor is either tough or not and that is measured by the number of convictions he or she exacts.

Those who think otherwise are mistaken; if you are looking for brilliance, go to a academia and private, not government practice.

That does not mean there are no brilliant prosecutors or brilliant lawyers in government service.

Ocampo should not have done the interview at all and if he had to, he should have done it in Spanish.

Conducting the interview in English he is not a master of made him come across as a bumbling buffoon which he  clearly is not.

He has already telegraphed what I have been saying all along and that is, let’s be prepared for some folks to walk and I think Ruto, Sang and Kosgey will walk, much less so the other two and even more less the other one.

It is not inconceivable that all but two would walk.

If this was a Kangaroo court, it will convict Ruto and UK and say, Case Closed.

This is not a Kangaroo court.

Given this record, you can clearly see I have been very consistent in my reasoning and views about this cases.

I have not changed my views like “Dutch weather” as my friend KM suggests.

Again, just so it’s clear, there is nothing wrong with changing views or analysis based on changed circumstances or new information.

Confirming something I left open regarding confirmation of the charges is not “changing like Dutch weather!”

I think you are mistaking the concept of changing one’s principles with changing viewpoints which are two different things: you can freely do the latter but not the former for doing the former is the proverbial being a wobbler–a no-no, especially in politics.

Ask Mitt Romney how he wishes this were not true.

Peace, Love and Unity

Omwenga

 
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Posted by on October 9, 2011 in Law, Politics

 

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Kibaki’s Continued Efforts to Defer ICC Case Is Doomed to Fail Without More

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.

 
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Posted by on March 19, 2011 in Siasa

 

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