Judges to decide suspects’ fate

International Criminal Court prosecutor Luis Moreno-Ocampo leaves on Saturday morning with the fate of Kenya’s post-election violence suspects resting with judges at The Hague.

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Depending on how well he argues his case, Mr Moreno-Ocampo could get authorisation that will see him go after a number of prominent Kenyans, including Cabinet ministers linked to the violence.

The ICC prosecutor will address a press conference this morning at the Windsor Golf and Country Club where he has been living since he arrived on Thursday.

On Friday, a statement from Mr Moreno-Ocampo’s office said that ICC judges would either grant him the request to start investigations in Kenya, reject it, or ask him for more information.

The move to seek authority for investigations from the judges follows Thursday’s meeting with President Kibaki and Prime Minister Raila Odinga, who did not make a referral. And to express his determination to fight impunity, the prosecutor has once again declared that Kenyans will provide an “historic example” for the world in how to prevent massive crimes. “The mandate of the ICC is to put an end to impunity and thereby contribute to the prevention of future crimes,” said the ICC statement.

Mr Moreno-Ocampo will only investigate individuals bearing the greatest responsibility for the most serious crimes. And curiously, the prosecutor was categorical that proceedings would be about “individual criminal responsibility and not about political responsibility”.

Stolen election

This will dampen hopes of those who have been crusading that the genesis of the violence — the alleged stolen election — should form the basis of investigation. Mr Moreno-Ocampo is in favour of a three-track process that will see the ICC go for the big fish, while Kenya prosecutes “small” offenders alongside national reconciliation.

The ICC statement yesterday also revealed that Kenyans might wait long to know the identities of those on the Waki list. According to the statement, the names will only be revealed once investigations are complete and summonses or warrants of arrest issued.

The wait could be even longer if the warrants are issued under seal. Though he did not secure a formal referral of the Kenyan case, the prosecutor made it clear he was fully convinced that crimes against humanity were committed in Kenya. Mr Moreno-Ocampo announced he would proceed with the matter and would present the probe request to judges in the ICC pre-trial chamber in December.

To convince the judges, he must demonstrate that crimes within the jurisdiction of the court were committed and that Kenya was reluctant or unable to prosecute the violence barons. According to the ICC procedure, if the chamber authorizes the request, the prosecutor will notify signatories to the Rome Statute that it had taken up the Kenyan case.

Within one month of that notification, any country—including Kenya— may inform the court that it is investigating the matter. If that happens, the prosecutor will defer to that country, unless the ICC judges authorise him to proceed.

Once the investigation is open, the prosecutor will dispatch investigators to Kenya to collect evidence and take witness statements. If sufficient evidence has been collected, the prosecutor will request ICC judges to either issue a summons to appear in court or a warrant of arrest. The two may be issued publicly or under seal, and the case will be confirmed and sent to the trial chamber.