Hague warning on Uhuru, Ruto

By Peter Opiyo

If either Mr Uhuru Kenyatta or Mr William Ruto is elected to State House next March, the new office will not grant them immunity from prosecution and even possible indictment by The Hague. 

That was the stern warning to Kenyans from International Criminal Court Prosecutor Fatou Bensouda as she landed in Kenya for the first time with election campaigns heating up and both leaders believed to be about to strike a pre-election pact. Also quite telling was her explanation that she was in the country to seek key information withheld by the Government and believed to be of significance to the prosecution of Kenyan cases at The Hague.

She declined to divulge the nature of the information she is after, but emphasised they touch on investigations of the cases and that she would be meeting Government officials over the matter.

She also strove to assure Kenyans the cases targeted individuals, not ethnic groups or even Kenya itself. “Let me stress this: the people of Kenya are not on trial; the Government of Kenya is not on trial and no ethnic community is on trial before the ICC. The allegations concern individual criminal responsibility,” she declared.

“The political future is in the hands of Kenyans themselves. The people of Kenya will decide on the outcome of the upcoming elections and ultimately, they will shape the future if this great country. The ICC judicial process will also take its own course irrespective of the political choices that the people of Kenya make,” she added.

The same case, Bensouda cautioned as repeated to Kenyans by her predecessor Luis Moreno-Ocampo, would also apply to any other position including that of deputy President. 

She pointed out that according to the Rome Statute there was no immunity for International Crimes at the ICC and on any person as well.

Her message, expected to be renewed when she meets President Kibaki, Prime minister Raila Odinga and other top government and security officials, came hot on the heels of warnings by former UN Secretary General Kofi Annan that a Uhuru or Ruto presidency would not augur well for Kenya internationally.

It is also the same message that US secretary of State Hilary Clinton brought to the country when she visited in August.

Rome Statute

Quoting the Rome Statute, Bensouda was categorical to Kenyans that the choices they make come March 4, 2013 elections will not deter cases facing four prominent Kenyans at The Hague.

The statement adds up to the other obvious one; that if Kenya were to go for a presidential ballot run-off and either Uhuru or Ruto would be in the top two positions, or either of them having been members of one winning party, they will miss the campaigns as they would be on trial and away from Kenya.

This is because both the run-off, if it will be there, and the start of the trials, for which the suspects have to be present, falls on April.

Uhuru is The National Alliance aspirant while Ruto is flying the United Republican Party ticket, but both are negotiating a pre-election pact that would see them run under one flag. The other two suspects are former Head of Civil Service Mr Francis Muthaura and radio journalist Joshua arap Sang.

Bensouda, made it clear that a possible election of Uhuru or Ruto would not grant them immunity against trials.

Annan’s remarks did not go down well with Ruto as well as Uhuru who on Sunday flew to Tanzania with a team from TNA and URP to try and convince President Jakaya Kikwete, who brokered the 2008 peace pact with Annan, to put up their case to be let to run unfettered to the international community.

Among the officials Bensouda is lined up to meet are Director of National Intelligence Service, Mr Michael Gichagi and Commissioner of Police, Mr Mathew Iteere.

The Government has been reluctant to deliver information from security officers who were in office at the height of the post-election violence.

“Kenyan victims, the women, men and children who suffered during the dark days of 2007/2008 are my priority, my daily motivation. They always have been and they always will be,” reiterated the Gambian national.

It is believed that government officials hold the evidence she is seeking to buttress her case and the same is documented by NSIS regarding the post-poll upheavals.

“We are working to resolve delays in the execution of our request by the Government of Kenya,” said the Prosecutor.

Asked whether the absence of the information would significantly affect the execution of the cases, Bensouda just expressed optimism that her office would get hold of the information. “I am hoping to get this information. I do hope we will get the information we are looking for,” said the Prosecutor.

Previously, the Government held onto the minutes of the National Security Council meetings held at the height of the violence. The ICC later obtained copies of the minutes.

There has also been a tug-of-war between the ICC and the Government over evidence from security officers regarding the violence. A quasi-judicial team headed by Justice Kalpana Rawal was formed to gather evidence on the violence from police bosses, but it flopped after a court injunction prevented the officers from giving evidence.

There is also the issue of whether a meeting at State House allegedly attended by President Kibaki with Mungiki adherents brought along by Uhuru, did actually take place, and what evidence there is to back this claim. The most credible body, if it respects its autonomy, to clear the air on this, is the NSIS.

Addressing the media at Serena Hotel in Nairobi, where Kenya’s peace deal was negotiated, the Prosecutor underlined the importance of the information saying they were confidential requests that must be delivered in time for the trial of the cases. “They are confidential request on investigations. It is good if we get the information and also in a timely manner,” said the Prosecutor.

Process policised

The ICC process has been politicised by the Ruto and Uhuru camps to set the stage for a hot and divisive contest because both sides blame their predicament on Prime Minister Raila Odinga and his party, the Orange Democratic Movement, even though it is Parliament that shot down the opportunity for a local judicial mechanism to handle post-election violence cases.

 “The four accused will have fair trial and an equal opportunity to refute the allegations. Their guilt or innocence will be established by the judges at the conclusion of these trials,” she assured Kenyans.

Intimidation of witnesses continues to concern to the ICC and Bensouda said her office has information on tampering with the witnesses and warned she is taking this seriously.

“We do have information and we are verifying this information and we are concerned about witnesses,” she emphasised. Interference with witnesses is a crime under the Rome Statute Article 70 and attracts a jail term of five years. Bensouda, who was nominated by the African Union to take over from Moreno-Ocampo, said she is indebted to AU and African leaders, including President Kibaki for their confidence in her.

“I consider myself to be a mere extension of the African public for ending impunity. In carrying out the mandate given to me by the 121 State parties, I am guided by the law and the cardinal principles of independence, impartiality and fairness,” Bensouda told journalists.