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The Queen’s Counsel for Kibaki on the Ocampo Six Is Doomed To Fail

The Queen’s Counsel for Kibaki on the Ocampo Six Is Doomed To Fail

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 prosecution of the cases before an impartial special tribunal.

Queen’s Counsel advise or not, these is essentially what the country needs to do to legally obtain a deferral under Article 16 of the Rome Statute, which governs ICC deferral applications.

Taking this approach, however, is too simple for those who relish on making the simple difficult if not impossible. Thus, instead of this simple, straightforward approach, the Queen’s Counsel, through an obviously leaked trial balloon, has advanced a number of deferral arguments for their client, Kibaki whose AG is no doubt at his best as his trusted counselor (remember when he was not?). These arguments are not credible nonetheless:

The Queen’s Counsel advises that Kenya should file a special application at The Hague by April 1 ostensibly seeking to challenge admissibility of the ICC cases as well as the Hague court’s jurisdiction and that further that the country should seek a delay of this challenge for six-months from the filing date. There are several reasons why this strategy is ill-advised:

First, you do not go before a judge and tell him or her “Your Honor, I need a six month’s delay” to do something I was supposed to do more than 3 years ago, which is essentially what the Queen’s Counsel is advising Kibaki to do.  This argument would have had one severely injured leg to stand on if it was advanced even as late as last December instead of unleashing Kalonzo on his road to nowhere from whence he has since returned with nothing to show other than how much money he wasted all along.  On the other hand, if the Queen’s Counsel is advising Kibaki to pursue this strategy of a six-month delay as a dilatory tactic, he would have been better off not making it public otherwise doing so simply undermines his credibility even before he shows up to make such a request.

Second, the ICC can automatically exercise jurisdiction under Article 12 of the Statute over crimes committed on the territory of a State Party or by a national of a State Party such as the ones the Ocampo Six are charged with. In this case, Kenya actually referred the this case to ICC thereby subjecting itself to ICC jurisdiction under Article 13. These are more than enough reasons for ICC to satisfy itself it has jurisdiction but there is more that need not be explored here.

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 Queen’s Counsel anticipates that a section of the coalition government will submit a contrary application to the advised application to challenge jurisdiction and admissibility of the case. The Queen’s Counsel comforts his client that “we must be ready to defend the Government against such attack.” In other words, the Queen’s Counsel is advising the Government to go to war against itself before the ICC. This is obviously bad counsel which needs no elaboration other than to say one hopes such advice is promptly ignored or dismissed.

In sum, Kenya does not need the Queen’s Counsel to tell us what to do about PEV and the Ocampo Six. We know what we need to do; let us just do it.

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Posted by on March 24, 2011 in Siasa


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