Kenya seeks Africa support over Hague
Vice-President Kalonzo Musyoka is received by South African President Jacob Zuma when he paid him a courtesy call at State House, Pretoria, on January 12, 2011. Mr Musyoka is in South Africa on an official visit as Kenya launches a charm offensive to seek Africa’s help in blocking ICC prosecution of the Ocampo Six. Photo/VPPS
A special division of the High Court has emerged as the local option to try the Ocampo Six.
This emerged as the Kenya government launched a charm offensive to seek Africa’s help to block The Hague from opening cases against the suspects.
Senior government officials are being sent to various African capitals to lobby for support ahead of an African Union meeting later this month.
Cabinet ministers from both sides of the Grand Coalition Government, who requested anonymity because of the sensitivity of the matter, said they had agreed to create a local alternative to the International Criminal Court before the Pre-Trial Chamber rules on Prosecutor Luis Moreno-Ocampo’s notice to charge the six.
As part of the deal, Parliament has been recalled and MPs will be back in the House next Tuesday to pass Bills that are key to an overhaul of the Judiciary and the Kenya Police Service.
MPs will also expedite the appointments of a new Chief Justice, Attorney General, Director of Public Prosecutions and the Inspector General of Police.
Given that the Judicial Service Commission has been sworn into office, they will quickly move to recruit new office holders, vet both High Court and Appellate judges, and establish the Supreme Court to give the Judiciary a new face and the capacity to handle the post-election chaos cases.
A minister in the ODM wing of the Cabinet said that there have been efforts in government to create a local mechanism that satisfies international standards to deal with the suspects.
It is believed that with new faces at the Judiciary and Police force, the UN Security Council can ask the ICC to defer the case against the Kenyans.
Even though Justice and Constitutional Affairs minister Mutula Kilonzo urged Kenyans to isolate the fate of the Ocampo Six from the urgency of implementing the new Constitution, he could not run away from reports that the urgency to revamp the Judiciary and the Police Force were meant to convince the UN Security Council that Kenya has the capacity to try the suspects.
“By August we will have a new CJ, AG, DPP, Inspector General (of Police) and Supreme Court. What would you need the ICC for?” he posed.
It is, however, clear that the new Constitution prohibits creation of a local tribunal, which is a superior court that works outside the jurisdiction of the Kenya criminal justice system.
In Article 162 (1), the Constitution states: “The superior courts are the Supreme Court, the High Court and the courts referred to in clause 2 (which are to be established by Parliament).”
Crimes against humanity
This means that a special division of the High Court, as provided for in the International Crimes Act which defines the crimes against humanity, genocide and war crimes is the only option.
Section 8 (2) of the International Crimes Act, states: “ A trial authorised by this section to be conducted in Kenya shall be conducted in the High Court.”
Aware of the provisions of the new Constitution, the government has sent out key leaders, among them Vice-President Kalonzo Musyoka to rally African Union members behind its push for the UN Security Council to have the ICC cases deferred.
Mr Musyoka who was in South Africa to meet President Jacob Zuma on Wednesday, also flew to Uganda for talks with President Yoweri Museveni ahead of the AU summit on January 29 in Addis Ababa.
