Urging Kenya to set up a local tribunal before it takes up the matter, the ICC added: "Once we intervene, we cannot be stopped."
And Dr Kofi Annan, the man credited with hammering out a deal between
political rivals Mwai Kibaki and Raila Odinga, and hence dousing
post-election flames, was also blunt regarding the time it takes to set
up a local tribunal: "We can't wait indefinitely If by the end of
summer there is no tribunal, I will definitely hand over the envelope
(containing names of violence suspects) to the ICC."
Prosecutor Louis Moreno Ocampo through special adviser Beatrice le
Fraper du Hellen said the ICC was ready to step in "any moment" they
are asked to do or if Parliament fails to set up the special tribunal
as recommended by the Justice Philip Waki Commission.
"We can act and we are ready to act," Ms Hellen said on the sidelines
of the Kenya National Dialogue and Reconciliation One Year Later
conference hosted by the Kofi Annan Foundation.
And speaking at the close of the two-day conference, Dr Annan said
Kenya was at a crossroads and urgently needed to re-energise the reform
process or risk descending into chaos come the next General Election.
In apparent reaction to politicians who have loudly claimed that they
preferred The Hague option because it would take time to find justice,
the ICC spokesman was blunt: "Let no one be under any illusion that the
trials and prosecutions will take 20 years."
She said there were examples of perpetrators of violence who have been
tried within 12 months Democratic Republic of Congo rebel leader Jean
She said though they did not have the names of the suspects in the
secret envelope', the ICC had adequate information and had been doing
its analysis and investigation since the violence started in January
She added the ICC was encouraging the Kenyan authorities, including
Parliament, to pass the necessary legislation for the establishment of
the special tribunal.
Attempts by President Kibaki and Prime Minister Raila Odinga to marshal
MPs to pass the constitutional amendment Bill entrenching it in the
Constitution were thwarted by MPs, who appeared keen to send the
suspects to The Hague on the premise that it was insulated against
meddling. Others were of the opinion that it was the best despite the
time it would take to conclude the cases.
The defeat of the Bill forced Annan to extend the period for establishment of the local tribunal by two months.
But yesterday, asked whether he would be willing to grant another
extension if Parliament failed to pass the Bill, Annan said: "We can't
wait indefinitely," signalling his intention to hand over the names of
the suspects to the ICC by September.
The grace period was to expire this week since the local tribunal was to be set up by January 30.
Yesterday, Hellen cautioned that even if the special tribunal were
established and commenced trials, the ICC could still intervene if they
felt the prosecutions fell within their mandate.
Hellen said the ICC respected national sovereignty, but the court in
The Hague had jurisdiction to visit Kenya as it was a signatory to the
Rome Statutes establishing the ICC.
Hellen spoke even as Deputy Prime Minister Musalia Mudavadi said those
pushing for the special tribunal argued it would arrest both "big" and
"small" perpetrators expeditiously.
Those against it, Mr Mudavadi said, did so out of fear that those who
bore the greatest responsibility for post-election crimes might
compromise the tribunal and unfairly victimise "small fry".
Mudavadi explained that the legal system compounded this, as actions on
the National Accord ran the risk of being challenged on constitutional
grounds, "and this being upheld by an increasingly intransigent
Mudavadi said awareness on the Waki Report recommendations should go to
all Kenyans and not be restricted to the political elite that turned it
into a contest between the Executive and the Legislature.
Back in Nairobi, lawyer PLO Lumumba concurred that The Hague could move
with speed to prosecute suspects if it turned its attention to the
"Those who live under the illusion that the ICC moves at snail's pace
are mistaken," Dr Lumumba told The Standard on the telephone.
"The local tribunal is susceptible to manipulation (by powerful
suspects). You recall the draft legislation had clauses that would have
allowed suspects to continue in office even when they are under
"But The Hague operates differently. Once you are indicted, you are
taken into custody like has happened to (former Liberian President)
Charles Taylor and (former DR Congo leader) Jean-Pierre Bemba," he said.
"The history of this country has painful lessons. Witnesses will be intimidated and others will disappear," he added.
But a law professor at the University of Nairobi, who asked anonymity,
differed: "The process of apprehending an international suspect is
laborious, ranging from investigation by the special prosecutor,
issuance of an indictment and arrest warrants to the pretrial stage."
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