Kenya's big day as Ocampo set to name six suspects in chaos case

International Criminal Court Prosecutor Luis Moreno-Ocampo will on Wednesday afternoon name the six Kenyan leaders he holds responsible for crimes against humanity during the post-election violence of 2008.

He will go before the ICC judges to ask for permission to open charges against the six. He is expected to file two cases, each involving three persons.

The documents he will give to the court will have the names of the persons he wishes to charge, the crimes they are alleged to have committed and the penalty that he will be asking for.

A three-judge bench will evaluate the two 80-page bundles of documents that Mr Moreno-Ocampo will file and decide whether he can proceed and file the charges he has identified.

In Nairobi, some officials said they believed President Kibaki and Prime Minister Raila Odinga have been briefed about the suspects.

The officials, who cannot be quoted because the information they are privy to is confidential, said they believed Mr Moreno-Ocampo had followed through his plan of going after key suspects in the Party of National Unity and the Orange Democratic Movement.

After putting his case to the judges, the prosecutor will hold a press conference at which he is expected to “make an important announcement concerning the investigation in the Kenya situation.”

ICC took over the Kenyan poll chaos case after MPs failed to form a tribunal to try the suspects.

The six individuals are being named because they are believed to have planned, financed and executed the chaos that followed the disputed December 2007 presidential election results. The violence claimed 1,133 lives and displaced 650,000 people from their homes.

From August 15, 2008, when Justice Philip Waki’s commission released its report on the violence advocating a local tribunal as an option to prosecute the masterminds of the chaos, there was no agreement among powerful political groupings about whether the tribunal was a good thing or not.

The Waki report had recommended that if the government did not form a tribunal, the matter would be handed over to the ICC.

Factions formed quickly, with some pushing for the President and the Prime Minister to adopt the local tribunal option, while others lobbied The Hague to take over the cases.

This pushing and shoving was partly the reason President Kibaki and Prime Minister Raila Odinga waited until the last day, on December 17, 2008, to sign the agreement promising to establish the tribunal.

The agreement committed the government to enacting two tribunal Bills by January 30, 2009, and forming the tribunal by February 28, 2009.

If the government failed, then the ICC was to take over automatically.

What followed in early 2009, was a game of political manoeuvring by the various factions. Parliament failed to pass Constitution of Kenya (amendment) Bill and the Special Tribunal for Kenya Bill by the January 30, 2009, deadline. In fact, the vote on the Bills took place on February 12, 2009, 13 days after the deadline. Both Bills were rejected.

Although concerned, chief mediator Kofi Annan on February 24, 2009, gave the government more time to reintroduce the Bills. The Then Justice and Constitutional Affairs Minister Martha Karua returned the Bills to the House.

Parliament voted on March 2, 2009, in the presence of President Kibaki and Mr Odinga. Once again, they were rejected.

Ironically, the factions were driving very different goals. A group from Central Kenya preferred The Hague on grounds that a local tribunal could be manipulated.

Another one, mainly from the Rift Valley, said it feared it was the target of The Hague option and supported the tribunal.

However, by the time the Bills were being debated, they had switched their support to the ICC, saying a local tribunal could be used by their political enemies to finish them.

Internal ODM rivalries pitting then Agriculture minister William against Mr Odinga also came into play. Mr Ruto’s supporters claimed that Mr Odinga’s support for the trial of post-election violence suspects was aimed at taming the Agriculture minister.

Agenda Four reforms

Yet punishment for crimes during the chaos was part of the Agenda Four reforms to which both sides in the coalition had committed.

Partly due to these frustrations, in April 2009, Ms Karua resigned from government and Mbooni MP Mutula Kilonzo was moved from the Nairobi Metropolitan Development docket to the Justice ministry.

He immediately started consultations with MPs and other players to build consensus on the Bills.

The highlight of the consultations was when he met President Kibaki and Mr Odinga on June 23, 2009, where they agreed on the urgency of forming the tribunal within the new deadline of July 30, 2009.

The minister was directed to quickly return the Bills to the House for debate.

A week earlier, US President Barack Obama had sent a message to the principals through assistant secretary for African Affairs Johnny Carson, encouraging the passage of the Bills.

On July 2, 2009, after a series of consultations, a government delegation comprising Cabinet ministers Mutula, James Orengo, Attorney General Amos Wako and assistant minister William Cheptumo was sent to meet Mr Annan in Geneva, Switzerland, and Mr Moreno-Ocampo at The Hague.

The delegation asked for more time and proposed that a special division be established at the High Court to try the suspects.

Back at home, the Cabinet rejected two draft Bills by Mr Kilonzo on grounds that he failed to protect the President, ministers and government officers from responsibility for the actions of their juniors.

The Bills were rejected by the Cabinet again on July 30 with the President declaring that The Hague can try the suspects.

Imenti North MP Gitobu Imanyara also attempted in early November to push for the Tribunal Bill, but it was rejected by MPs who walked out of the House every time he sought a vote.

After this indecision by the government and scheming by key leaders, Mr Moreno-Ocampo went before the Pre-Trial Chamber on November 26, 2009, to seek permission to start investigations. The permission was granted on March 31.

The prosecutor arrived in the country on May 8 to begin investigations. He came back on December 1 to seek assurances from the President and Mr Odinga that they would cooperate if he issued summons. They did.

On Wednesday, the suspects will finally be named.