Hague panel’s shocker for AG

The government has no choice but to hand over the Ocampo Four to The Hague and seize their assets if requested, a high-level panel advising it on the cases at the International Criminal Court (ICC) has said.

The team also wants a special prosecutor named to probe and try all post-election violence cases, possibly including those of the Ocampo Four, with a strict timetable for the completion of investigations and prosecutions.

Though the committee does not expressly say that the government should arrest the four suspects if asked to, its report, which the Daily Nation has been briefed on, gives a list of things Kenya is obligated to do under the Rome Statutes and the International Crimes Act.

“The Committee advises the GoK to continue cooperating with the ICC in accordance with the ICC Statute and Kenyan law and to pursue relevant applications for assistance to be provided by the ICC to the GoK at appropriate times,” the committee says in its report to Attorney General Prof Githu Muigai.

It, however, says that the government has the right to refuse the ICC requests, if it feels that the matter is a threat to national security. The panel warns against pushing for the cases to be referred to Kenya, arguing that this was unlikely to be granted by the ICC judges.

“Any further admissibility application to the ICC to ‘recover’ jurisdiction of the Four Accused is most unlikely to be granted by the ICC in the absence of evidence of a genuine ability, willingness and intent by all parts of the justice system to investigate, prosecute and try all perpetrators and in particular the Four Accused,” the report says.

As a result, the panel has proposed the government comes up with a comprehensive policy for dealing with PEV cases, including the Ocampo Four. It says that such an overall policy should be founded on a reasonable balance between retributive and restorative justice mechanisms.

“It must make provision for investigating and prosecuting the most serious offenders, regardless of rank or position. The committee advises the GoK that immediate consideration must be given to the formulation and implementation of a comprehensive policy.”

The report says the special prosecutor should be assisted by international experts. It also called for a special audit of all cases relating to crimes committed during the violence to determine which ones could be prosecuted further or terminated depending on available evidence and the willingness of victims to pursue them.

“The GoK should consider the appointment of an independent ‘Special Prosecutor’ for PEV cases including those involving the four Accused against whom charges have been confirmed by the ICC,” the lawyers advised.

“The appointment of a Special Prosecutor with dedicated resources is necessary to consider, taking into account the challenges faced by the current prosecutorial department and the great need to deal with PEV expeditiously and on a priority basis.”

The report says the engagement of a special prosecutor does not mean the creation of a special court or chamber because the revamped Judiciary can hear the cases.

The lawyers further advised that the international experts attached to the office of the special prosecutor should assist in the investigative, prosecution and trial processes with a view to helping to promote the professionalism required which could assist to inspire confidence in the local process.

The lawyers told the government to treat with utmost priority the establishment of the special audit of all cases relating to the post election violence, to know which cases cannot be prosecuted due to lack of evidence, which ones warrant alternative justice mechanisms and which ones can be prosecuted.