State enlists Queen’s Counsel in Hague cases

• Attorney General Amos Wako has tapped two British lawyers, Sir Geoffrey Nice and Rodney Dixon, both associated with Sudanese President al-Bashir’s legal battles at The Hague, to advise the government on how to defer the cases against the Ocampo Six. Who are these lawyers, and can their legal advice advance the government’s cause?
• AG Amos Wako says he’ll present opinion of the two lawyers to the Cabinet

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.