State enlists Queen’s Counsel in Hague cases

The government has turned to two British lawyers associated with the case against Sudanese President Omar al-Bashir at the International Criminal Court in a last-ditch attempt to end the case against the Ocampo Six.

Sir Geoffrey Nice, Queen’s Counsel, and Rodney Dixon arrived in the country last week and held their first meeting with Attorney-General Amos Wako on Friday, sources at the AG’s chambers told the Sunday Nation.

The two British lawyers are expected to help the government put up a strong case against the efforts of ICC challenging prosecutor Luis Moreno Ocampo to have six Kenyans indicted for crimes against humanity.

“They are here to form a preliminary opinion on the various issues before I can confirm their appointment,” AG Amos Wako told the Sunday Nation. “I want to handle this professionally, and I want an opinion from people who have practised before the ICC. I want an informed opinion.”

Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura, former Police Commissioner Hussein Ali, Eldoret North MP William Ruto, his Tinderet counterpart Henry Kosgey and radio presenter Joshua Sang have been accused of committing crimes against humanity during the post-election violence in 2007-2008.

The government has mounted an expensive campaign, including lobbying the UN Security Council, to have the six tried in Kenya.

On Saturday Mr Wako said he plans to present the opinion drawn up by the two lawyers to the Cabinet for consideration and formulation of a strategy.

The AG spoke as Law Society of Kenya chairman Kenneth Akide cast doubts on Kenya’s ability to convince the world that the cases should be deferred.

“The government must engage the ICC and demonstrate to the court what mechanisms it has put in place to bring to account the persons whom investigations have pointed to. Short of that, we do not support the current process because we think it’s an extension of the impunity we are trying to punish,” Mr Akide said.

He suggested that the government should make another attempt to establish a local tribunal.

“The government needs to go back to the drawing board and engage Parliament and set up a credible local tribunal. The ICC knows the necessary benchmarks. I do not think there are sufficient grounds to challenge admissibility and jurisdiction,’’ he said.

The Kenya chapter of the International Commission of Jurists is also of the view that the challenge Mr Wako has promised to put up will fail.

“The government has the right to challenge admissibility, but if wise counsel prevailed, they would spend that time doing something else. If government was saying it has got something of its own that it’s falling back on, then you would sympathise with the government. But they are saying let’s not have ICC and instead let’s have nothing. They are saying–leave us alone,’’ said ICJ executive director George Kegoro.

“The Ocampo Six just have to go and defend themselves. They say they are going to respond to the summonses, and that is wise. I hope they put up a spirited defence for themselves, and then we will abide by the decision of the court. That is really the only option,” he said.

According to the ICJ, those still holding public office should resign because they are in contravention of the Public Officer Ethics Act that prohibits conflict of interest.

“You can’t be involved in making decisions in a matter where you have an interest,” he said.

The government– even though coalition partner ODM has expressed its reservations–has resolved to go before the Pre-Trial Chamber to block Mr Moreno Ocampo from opening cases against the six.

Through Mr Wako, Kenya will submit that the ICC has no powers to hear the cases.

The Rome Statute, which established the ICC, has provisions that allow both the Ocampo Six and Kenya to go before the Pre-Trial Chamber judges to argue that the two cases should not be allowed to proceed.

The two British lawyers tapped by the State Law Office have extensive legal experience in England and have also practised international criminal law.

Sir Geoffrey has previously worked for the United Nations at The Hague where he prosecuted former Serbian President Slobodan Milosovic for war crimes.

He left the ICC under controversial circumstances.

Mr Milosovic died of a heart attack on March 11, 2006 in his prison cell at The Hague before his case was concluded.

Mr Dixon has been representing Mr al-Bashir in proceedings involving the ICC and the Darfur conflict.

Last July the two lawyers told reporters in Kampala that the arrest warrants issued for Mr al-Bashir on allegations of war crimes and genocide were illegal and should be revoked.

They raised a legal argument that a sitting head of state should enjoy immunity from prosecution at the ICC.

The issue of immunity for a sitting president has never been resolved and can only be dealt with by the International Court of Justice (which is distinct from the ICC), according to Sir Geoffrey and Mr Dixon.

“There is a provision in the ICC charter that states should observe their obligations to other states in terms of immunity, even where there is an indictment by the ICC,” Sir Geoffrey told reporters at the AU summit held just outside Kampala.

The two attorneys are now supposed to help the Kenya Government block the International Criminal Court from charging the Ocampo Six.

The two are the latest foreign lawyers to join Kenya’s ICC case. Mr Kenyatta, Mr Muthaura and Gen Ali have all retained foreigners as lead attorneys in their bid to fend off Mr Moreno Ocampo.

The two lawyers and Mr Wako begin work days after a United Nations agency official cautioned Kenya against mounting a challenge before starting investigations against the post-election violence suspects.

“For states with sovereign jurisdiction desiring to challenge admissibility, the bottom line is that they must clearly demonstrate that they are truly and genuinely investigating or prosecuting the cases in question,” Mr Chile Eboe-Isiji, a legal adviser to the UN High Commissioner for Human Rights, wrote.

To successfully argue the case, Kenya will be required to prove that the Ocampo Six and other alleged perpetrators of the violence are either being investigated over or prosecuted for the crimes.

The AG can also argue that Kenya has already investigated the case and decided against prosecuting the concerned people.

But if the decision was based on the unwillingness or the inability of the government to prosecute, the court will rule against the challenge.

Kenya may also claim that since a new Constitution was approved, it is in the process of putting in place institutions that will ably investigate and prosecute the Ocampo Six.