Kibaki, Raila plot way out for Ocampo 6

President Kibaki and Prime Minister Raila Odinga on Thursday discussed the establishment of a credible local tribunal as an alternative to trial at The Hague for the six Kenyans under investigation by International Criminal Court.

And the first step towards persuading the international community that Kenya has the will and capacity to try the suspects locally is by undertaking comprehensive judicial reform.

To that end, sources revealed, the President and the Prime Minister spent a considerable amount of time during their first working meeting this year exploring ways of appointing a new Chief Justice without flouting the provisions of the new Constitution.

Chief Justice Evan Gicheru is set to exit with enactment of the new supreme law, but the new Judicial Service Commission that should play a key role in the appointment of his successor is yet to be sworn-in. Also set to make an exit is Attorney-General Amos Wako.

A school of thought in government is that if both Chief Justice Gicheru and Mr Wako leave office alongside major steps towards reforming the Judiciary, the State Law Office and the Police Service, Kenya could have the leeway to petition the ICC directly or through the United Nations Security Council to suspend the hearings on Kenya while a local mechanism is pursued.

On December 15 last year, ICC prosecutor Louis Moreno-Ocampo named Deputy Prime Minister Uhuru Kenyatta, suspended Cabinet ministers William Ruto and Henry Kosgey, Head of Civil Service Francis Muthaura, former Police Commissioner Hussein Ali and Kass FM presenter Joshua Sang as the six individual he wants to open cases against over the 2007 post-election violence.

Withdraw from ICC

On Thursday, it is understood that President Kibaki and Mr Odinga discussed ways of getting the six off The Hague tentacles.

Should this fail, they were in agreement that the government would still seek the assistance of the United Nations to establish a local tribunal to try other post-election violence suspects.

The two principals also discussed the Motion that was passed by MPs urging the government to withdraw from the ICC and repeal the International Crimes Act. However, the two, sources said, were reluctant to give in to the MPs’ pressure.

Mr Moreno-Ocampo and his team resumed work on Monday with the judges of Pre-Trial Chamber II expected to start scrutinising the cases to determine whether the prosecutor has a case against the six Kenyans. They are expected to make their ruling either by the end of next month or early March.

Chief Justice Gicheru is set to walk away by February 27, while Mr Wako’s record 20-year reign is set to end by August though there are indications he may be persuaded to leave earlier.

On Thursday, sources close to the morning meeting at the President’s Harambee House office said the heart of the discussion was whether a new CJ can be nominated before the establishment of the Judicial Service Commission.

The Constitution requires the President to name a new CJ in line with the recommendations of the JSC and with the approval of Parliament.

However, in the Transitional Clauses, the Constitution is silent on the role of the JSC, only referring to power-sharing National Accord.

It states: “The new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act and after consultation with the Prime Minister and with the approval of the National Assembly.”

On Thursday, the chairman of the Parliamentary Oversight Committee on the Implementation of the Constitution, Mr Abdikadir Mohamed, said the idea that the President could go ahead to name a new CJ in the absence of the JSC was gaining currency.

“There is an assumption that the President can go ahead and do it alone. However, it would be ideal if the JSC is left to carry out the tasks and hand over the names to the President who can either accept or reject. Parliament can similarly approve or reject,” he told Nation.

The JSC is yet to be formally established even though Parliament passed the Judicial Service Commission Bill before taking the Christmas break.

However, Justice minister Mutula Kilonzo said that the process of appointing a new CJ cannot start at present. He asked Mr Justice Gicheru to swear in members of the commission to kick-start the process of naming his successor.