Ocampo may go for Kibaki and Raila

• Hidden legal print shows why Kibaki and Raila could face trial over poll violence

President Kibaki and Prime Minister Raila Odinga may be called to account for atrocities committed during the post-election violence, should the International Criminal Court take up the matter.

The ICC chief prosecutor, Louis Moreno-Ocampo, could task the two leaders to explain what they knew about the violence that left more than 1,300 people dead and over 600,000 displaced, and what they did to stop it.

The ICC law requires the two, being in charge of government and their supporters, to have done everything possible to avert any crimes against humanity perpetrated by their followers and security agents.

But whether or not the two will be taken to task for their role in the post-election violence, and if they will be required to testify when the trials begin, remains to be seen. 

Nevertheless, these are some of the issues emerging as Kenyans grapple with the question of whether to set up a local tribunal to try the suspected perpetrators of the violence or await the international law to take its course from The Hague.  

The suspects

On Friday, the ICC prosecutor gave Kenya 12 months to set up a special tribunal to try the suspects, saying his was a court of last resort.

A statement released after a meeting of Kenyan ministers and Mr Moreno-Ocampo said: “If there is no parliamentary agreement, and in accordance with the Kenya Government’s commitment to end impunity of those responsible for the most serious crimes, the Government of Kenya will refer the situation to the prosecutor in accordance with Article 14 of the Rome Statute.”

Opponents of the local tribunal are silently pushing the position that President Kibaki and Mr Odinga must take the blame for the violence.

They are convinced that a local tribunal will let the two principals off the hook, despite the fact that their stiff competition for the country’s leadership was the cause of the violence.

This raises prospects that should the country opt for the ICC, the two leaders will at some point be forced to testify.

A close look at the Rome Statute — the international law that set up the ICC — shows that the President and the Prime Minister are likely to be drawn into the trial should the cases end up there.

Article 27 of the statute states that one’s position in government does not guarantee any immunity from prosecution. But Article 28 is the one that would nail the principals, especially if those working under them choose to pass the blame.

The ICC law – to which Kenya is a signatory – states: “A superior shall be criminally responsible for crimes within the jurisdiction of the court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

• The superior either knew, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes;
• The crimes concerned activities that were within the effective responsibility and control of the superior; and

• The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 

It is this law that attracted unfavourable attention from some countries, specifically Libya, at the African Union Heads of State summit this week. It was touched off by a warrant of arrest issued by the ICC against Sudanese President Omar al-Bashir.

On Saturday, AU ministers passed a resolution to deny the ICC cooperation regarding Mr Bashir. They argued that the chaos in Darfur, which the arrest was meant to address, might escalate if it is executed.