Journey to the ICC began with failure to form local panel

Lands Cabinet Secretary Charity Ngilu and other officials arrive at Schiphol Airport, Amsterdam, on October 7, 2014. PHOTO | JOAN PERERUAN |

What you need to know:

  • It started in November 2009 when the Ocampo asked the Pre-Trial Chamber for permission to launch investigations into the alleged crimes committed during the post-election violence.
  • On March 31, 2010, Pre-Trial Chamber II judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser, by majority of two to one, authorised the prosecutor to begin an investigation.

President Kenyatta’s journey to the International Criminal Court can be traced back to the 2008 post-election violence when 1,133 people were killed and more than 600,000 displaced.

He is facing charges of being “criminally responsible” as an indirect co-perpetrator for crimes against humanity.

They include murder, forcible transfer, rape, persecution and “other inhumane acts”.

As it stands, it is not known when his case at The Hague will eventually begin because the judges Kuniko Ozaki (Presiding), Robert Fremr and Geoffrey Henderson postponed the case for the third time following a request from the Prosecution.

So how did Mr Kenyatta get here?

It started in November 2009 when the then Prosecutor Luis Moreno-Ocampo asked the Pre-Trial Chamber for permission to launch investigations into the alleged crimes committed during the post-election violence.

On March 31, 2010, Pre-Trial Chamber II judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser, by majority of two to one, authorised the prosecutor to begin an investigation into allegations of crimes against humanity in Kenya.

MEET THRESHOLD

Judge Kaul dissented arguing that Mr Ocampo had not proved that the crimes committed during the post-election violence meet the threshold of cases to be brought before the ICC.

“After having meticulously analysed the information contained in the supporting material and the victims’ representations, I conclude that this threshold is not met,” judge Kaul, who has since died, said.

On December 15, 2010, Mr Ocampo submitted an 80-page report of investigations in Kenya to the Pre-Trial Chamber II requesting the judges to issue summons to appear for then suspended minister William Ruto, Deputy Prime Minister Uhuru Kenyatta and Tinderet MP Henry Kosgey.

The prosecutor also asked the judges to order then Head of Public Service Francis Muthaura, former police boss Hussein Ali and radio journalist Joshua arap Sang to make an appearance.

OCAMPO SIX

Known as the Ocampo Six, the suspects were named in an envelope that the Waki Commission handed over to the mediator, former UN secretary-general Kofi Annan.

Mr Annan had given Kenya a deadline to form a local tribunal or else he forwards the names to the ICC. That deadline expired in July 2010, and Ocampo got a go-ahead to launch investigations.

The Pre-Trial Chamber II judges, later on March 8, 2011, ordered Mr Kenyatta to appear before them.

At this point, he and five other suspects had been formally indicted.

In Mr Kenyatta’s case, the other two judges said there were “reasonable grounds to believe” that he and Mr Muthaura were culpable as indirect co-perpetrators of the crimes.

The judges though ruled that Maj-Gen Ali’s contribution was not key to the commission of the crimes. They argued he had contributed “in any other way” even though it was not through direct co-perpetration.

On April 8, 2011, Mr Kenyatta and his co-suspects Francis Muthaura and Maj-Gen (Rtd) Hussein Ali appeared before the judges at The Hague.

The events at The Hague influenced some MPs to pass a motion a week later to compel Kenya to pull out of the ICC’s formative law, the Rome Statute.

In January 2011, African Union leaders supported Kenya’s plan to defer the cases after President Mwai Kibaki said his government would create necessary legal instruments to try suspects locally.