Storm as ICC asked to probe Raila, Kalonzo

Kenya could sink into fresh levels of political gymnastics and machinations after it emerged that a petition against National Super Alliance (NASA) leader Raila Odinga and his running mate Kalonzo Musyoka has been filed at the International Criminal Court (ICC).

Sunday Standard exclusively obtained documents deposited at the ICC in which two Kenyans have asked the court to investigate the Opposition leaders over what they term “inflammatory conduct” and other crimes that fall within the jurisdiction of the court.

Kenneth Otieno and Martin Nkari, the chairman and secretary of the International Policy Group (IPG), have jointly instructed a Canadian law firm to formally ask ICC Chief Prosecutor Fatou Bensouda to launch investigations into the leading lights of the opposition.

 They appear to be alluding to the flare-ups of violence in major towns when the opposition is doing its protests against the Independent Electoral and Boundaries Commission (IEBC).

THE PLEA

On Friday, an intentionally recognised Canadian law firm, Watson Jacobs McCreary LLP, submitted papers to the court and they were formally received by Ms Patricia Castro, and then onto the Prosecutor’s office.

However, being on a weekend, we could not immediately and independently confirm this receipt with the prosecutor’s office. An ICC official in an email sent on Friday at 4:41pm is seen confirming that the petition had been filed and registered under OTP-CR-322/17.

Specifically, according to documents in our possession, the two Kenyans have listed “ethnic violence, mobilisation and profiling, rape, sexual and gender-based crimes, targeted aggression, violent utterances and constant call to violent demonstrations and call to arms” as the reasons behind their plea to the ICC, the world court that investigates crimes committed by the world’s filthiest warlords and mass murderers, who seek to defeat justice in their home countries.

They have attached video clips and newspaper cuttings which they say support their case. The two have told the court they fear that if the ICC does not act right away, the country could spiral into anarchy.

The tone of their letter appears to be informed by the call for weekly peaceful protests issued by the Opposition when Raila and his running mate Kalonzo withdrew from the top race citing failure of the electoral commission to carry out key reforms to guarantee a free, fair, credible and verifiable election.

“If the prevailing volatile situation in Kenya does not get urgent attention and action from the ICC, we apprehend mass atrocities, ethnic profiling, violent ethnic mobilisation, mass displacement of persons, destruction of property, rape, sexual and gender-based crimes and complete breakdown in law and order in the period leading to the October 26 2017 election, during the election, and after the election,” they said in their letter signed October 9, 2017.

But NASA leaders have strongly dismissed the move. Coalition co-principal Musalia Mudavadi said they had not been made aware of the filing at ICC. He said his bosses in the coalition had not done anything unconstitutional during their campaigns and demonstrations.

NOTHING TO FEAR

He said their supporters have largely been peaceful and they had suffered police brutality in the process. “Our supporters have carried themselves with decorum, it is the police that have killed by the bullet and maimed. Why kill unarmed people participating in a constitutional exercise,” said Mr Mudavadi.

Senator James Orengo said they had nothing to fear and observed that such a move would prove that Jubilee administration was not up to task. “We have nothing to fear. Entry by ICC would mean Jubilee government is unable or unwilling. Let them try,” said Mr Orengo

The applicants lawyer, David Jacobs, on Friday wrote to the Information and Evidence Unit in Bensouda’s office at The Hague, Netherlands, and told her that she should get involved in the issues raised “with utmost urgency.”

“As I am sure you can appreciate, in all of the circumstances, with the upcoming elections in Kenya, the matters raised in the attached petition merit immediate attention and action by the office of the prosecutor,” said Jacobs.

And in another letter to the petitioners, Jacobs is seen confirming to his clients that the matter has already been formally filed as instructed. 

The letter reads in part, “I can now confirm, on your instructions, I have caused the petition to be filed with the office of the Prosecutor at the ICC today. My colleague and agent, Chief Charles Taku, has confirmed to me that he attended this morning at the ICC on my behalf and on my instructions and filed the petition and my covering letter at the court.”

When we wrote to Watson Jacobs McCreary LLP to confirm authenticity of the petition and the filings in court, Jacobs confirmed that they had indeed been officially instructed and had already filed the matter at the ICC. Jacobs’s response to the Sunday Standard reads in part: “I can confirm that Watson Jacobs McCreary LLP legal firm, where I am a partner and lead counsel in this case, has received official instructions from the petitioners to act for them at the ICC. The Petition has been filed with the Office of the Prosecutor. The current status of the matter is that the petition has been formally registered at the ICC.” 

Similarly, one of the petitioners Kenneth Orengo confirmed that they had indeed issued instructions to file this petition at ICC to Watson Jacobs McCreary LLP. Orengo is first cousin to Siaya Senator James Orengo. “We have instructed David P Jacobs to file a petition against Raila Odinga and Kalonzo Musyoka at the ICC. In September last year we also petitioned the UN Special Advisor on Genocide on the same concerns,” said Orengo

It remains unclear as to whether the petitioners have acted purely on their own independence and volition or if there exists a powerful hand of faceless and powerful entities or individuals.

This is particularly so because they have enlisted the services of one of the most recognised legal minds internationally, which automatically means there would exist a significant financial element in legal fees.

IPG first came to prominence when it placed a full page advert in support of the amended electoral laws last week. The laws are currently before the President awaiting accent.

Jacobs is a senior partner at the firm of Watson Jacobs McCreary LLP with over 34 years in practice. He is an internationally recognised lawyer admitted to the ICC’s List of Counsel and has acted as lead defence counsel in proceedings before the Trial and Appeal Chambers of the United Nations International Criminal Tribunal for Rwanda.

VAST EXPERIENCE

He is the elected Chair of the Legal Advisory Committee of the International Criminal Court Bar Association and a member of the Association of Defence Counsel Practising before the International Criminal Tribunal for the Former Yugoslavia. He is also a is a member of the Public Affairs Committee of the Ontario Bar Association and past Chair of the Constitutional and Civil Liberties Section of the Canadian Bar Association (Ontario).

According to documents filed in court, the petitioners have told The Hague based Court that  “Their (Raila and Kalonzo) unlawful and illegal efforts is, in this context and history, nothing more than a call to arms against a section or sections of the Kenyan population based on an ethnically mobilised and targeted violence aggression, with the aim of taking Kenya beyond a breaking point forced through mass atrocity, mass displacement of persons, destruction of property and the complete breakdown of order and the rule of law. In other words, an incitement to commit crimes against humanity.”

The petitioners claim that domestic investigations against Raila and Musyoka cannot take off allegedly because “subject to retaliation and politicization by Raila and NASA; would be unreasonable prolonged, subjected to local intrigues and therefore completely ineffective.”

The petitioner goes on to say, “Raila and Kalonzo hold the perverted view that any Kenyan institution that is unwilling to pander to their whims must be disbanded.”  

The IPG plea to the ICC comes against a backdrop of heightened protests as a result of Raila’s withdrawal and a government ban on protests in Nairobi, Mombasa and Kisumu — where businesses have been hardest hit, because of fear of looting and violent clashes between opposition protesters and pro-government groups.

The Opposition has been adamant that the electoral commission is trying to frustrate reforms recommended by the Supreme Court, and has called supporters to the streets for peaceful protests.