The Grand Coalition Government is working on a new two-pronged strategy to have perpetrators of post-election violence tried locally either by the International Criminal Court-led judicial process, or by a local tribunal, inquiries by the Nation revealed on Wednesday.
ODM, which dropped its tough stance on the Hague process on Tuesday, is preparing a Bill that will result in the establishment of a local tribunal or an ICC-led judicial process. (READ: ODM disowns efforts to challenge ICC cases)
The Attorney-General Amos Wako is preparing to file a suit opposing the trial of the Ocampo Six at The Hague before April 1.
Deputy Prime Minister Uhuru Kenyatta, MPs William Ruto and Henry Kosgey, Public Service boss Francis Muthaura, former Police Commissioner Hussein Ali and radio presenter Joshua Sang have been identified by the ICC as the persons who may bear the greatest criminal responsibility for atrocities committed during the election violence.
The government has retained two British lawyers, Sir Geoffrey Nice and Mr Rodney Dixon, to challenge the admissibility of the case and the jurisdiction of the ICC over the post-election violence crimes.
A hard nut to crack
However, PNU and ODM are split on challenging the admissibility of the case and the ICC jurisdiction, with Lands Minister James Orengo describing it as a “hard sell”.
“The only thing is we have to show that there is a local mechanism, prosecutions or ongoing investigations. It is going to be a hard nut to crack,” he said.
On Wednesday, Prime Minister Raila Odinga told Parliament that ODM was pushing for a referral, for the suspects to be tried locally by a credible judicial mechanism with foreign investigators (the FBI and Scotland Yard) and prosecutors picked through a transparent process.
“As for now the Kenya police cannot investigate because they also stand accused of perpetrating the criminality through shootings and killings,’’ he said. (READ: Prove your innocence at Hague, Ocampo Six told)
Mr Odinga said the party had not changed position on the trials, although secretary-general Anyang’ Nyong’o wrote to the UN Security Council opposing both referral and deferral of the cases last week.
It also emerged that the State Law Office was preparing a list of all pending post-poll chaos cases to prove that the government has been investigating the matter.
On Wednesday, chief public prosecutor Keriako Tobiko said a team from his office and the police was preparing a list of all prosecutions and pending cases to be handed to the AG on Friday.
“It will be ready for submission to the Attorney-General on Friday. I cannot give you the figures because they are likely to be in conflict with what the team is compiling; so wait until Friday,” he said on phone.
While moving the Witness Protection (Amendment) Bill last April, Mr Wako said there were 3,600 unresolved post-election violence cases, whose prosecution is hampered by intimidation of witnesses.
ODM secretary-general Anyang’ Nyong’o said the party had taxed lawyers to prepare a Bill providing for an independent tribunal or an ICC-led local judicial system.
“ODM want to see all perpetrators of post-election violence tried by an independent tribunal or an ICC led judicial process and not the local judicial system,” said Prof Nyong’o.
Article 3 of the Rome Statute allows for establishment of a court outside The Hague in the Netherlands so long as such a decision is approved by the Assembly of States Parties.
“ODM is ready to support an independent court away from the local judicial process, which must have judges with known experience in dealing with such cases and have international credibility and not one that will continue to propagate impunity,” he said.
“The Prime Minister and ODM have always talked of a referral only if a local mechanism that does not shield anybody or group of people is in place,” said Lands Minister James Orengo.
ODM nominated MP Musa Sirma said the party had decided to stand by its people following suspicions that PNU wants to sacrifice them to show that they were the perpetrators of post-election violence.
“We want to stand by our people who have been mentioned. We know that PNU wants to sacrifice our people and we are not ready to allow it,” he said.