Kenya: Which nation will jail Kenyas VIPs?

The VIP lunch will progress against the backdrop of diminishing prospects for those suspected to have higher responsibility for post-election violence being tried by a local legal instrument propped up by international standards.

If September lapses and this threshold wont have been met, the International Criminal Court will step in, a fact that has funnelled speculation on which countries could open up their jails for Kenyas VIPs if they are convicted.

The Rome Statute to which Kenya is a signatory sets very high standards for jails, rulling out the possibility of those convicted spending time in their domestic jails.

Any country signatory to the Rome Statue, except those with disputes with Kenya, could take up the convicts. In the case of former Liberian President Charles Taylor, who is being tried for heinous crimes at the Special Court for Sierra Leone at The Hague, Britain has said it would incarcerate him if he were convicted.

If Parliament again denies the Cabinet its bid for a local instrument before the September deadline, at whose lapse Ocampo would step in. But before this stage, Kibaki and Raila would first have to break the stalemate in the Cabinet in the third round of meeting on Tuesday.

Historic Junction

If the Cabinet bid flops, or it agrees on thresholds that meets international standards, such as opening up Kibaki for trial if he is found to have played a role, then only Parliament would determine which turn at the historic junction Kenya would take The Hague or a local legal instrument.

Beside the official engagement in Nyanza, the visit is being viewed as their attack on perception they have failed to rally splintered Cabinet and hostile Parliament behind the proposal high-profiled personalities linked to post-election violence be tried by a special division of the High Court.

This view is lent credence by the fact that it will culminate in a reception by Lands Minister James Orengo, a member of Kenyas delegation to The Hagues Chief Prosecutor Justice Luis Moreno-Ocampo and Chief Mediator Dr Kofi Annan.

Its significance also comes hours to Tuesdays third round of Cabinet meeting, to try and break the stalemate on standards the special courts must achieve to persuade MPs out of their preference for International Criminal Court. Perpetrators of the chaos, whose names have been submitted to the ICC, are believed to include at least six ministers, who could end up serving long jail terms in Europe or Africa, but only if their cases go to The Hague.

Swaziland is the only African country to host a prison for ICC inmates who may soon include Kenyan politicians.

Other prisons are in Sweden

But except for curtailed freedom of movement, isolation, and free will, life in these facilities could be tolerable compared to Kenyas regular prisons. There are also guarantees to a raft of rights, from conjugal rights, to freedom to choose the jail where one wishes to serve in. Prisoners also have access to television, a balanced diet, free laundry, books and religion.

For the perpetrators of electoral violence to be jailed in Kenya, Kennedy Ogeto, a defence counsel at the International Criminal Tribunal for Rwanda (ICTR) and the UN Special Court for Sierra Leone, the country has “to spruce up its prisons and give them international standards”.

The International Criminal Tribunal for Rwanda, which has been trying those who organised 1994 genocide in which 800,000 people were killed, has prisons in Mali, Benin and Swaziland. It also has a detention centre in Arusha, Tanzania.

The ICC prisons are rated among the best prisons in the world with private rooms and facilities one would only expect to find in a middle-star hotel.

Protected Rights

The persons convicted are also protected under the International Covenant on Civil and Political Rights (ICCPR).

The ICCPR Article Six, Seven and Eight govern their lives in prisons.

Article 6 reads in part: “Every human being has the inherent right to life … anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.”

Ogeto says one is taken to prison after the sentencing and appeal have been decided upon.

The president and the prosecutor then inform the person convicted before he is taken to prison.

“The convict has right to reject a country he is taken to if he has credible reasons he or she may not be willing to be taken to the particular country,” added Ogeto.

In 2007 ICC detention commandant Sandon Guindo told The Standard: “Every compound (comprising 18 cells) is provided with a television set connected to Pay TV. It serves to provide for recreation and information.”

“Daily ration cost per detainee is Sh500. The meal is prepared, taking into consideration the age, health, and cultural requirement of the detainee,” Guindo added. Menus vary from vegetarian, non-vegetarian, red meat to white meat.

The Standard