Kenya: Ministers hire lawyers

The ministers met as news filtered that International Criminal Court Chief Prosecutor Luis Moreno-Ocampo (pictured) wont be in Kenya on the November 3 date he was given by Kibaki and Prime Minister Raila Odinga. The prosecutor is reported to have asked to arrive on November 6. Raila did not attend the meeting as he is in China. The Cabinet meeting progressed as reports also surfaced 10 prominent personalities, including ministers adversely mentioned in the 2007 post-election violence report, were consulting their lawyers.

They were reported to have engaged lawyers, for the sole reason they were adversely mentioned before Justice Phillip Waki Commission and a report compiled by Kenya National Commission on Human Rights. The reports are believed to be Ocampos springboard on Kenya.

Our inquiries with some lawyers revealed they were preparing for any eventuality to defend their clients. Some even confidently said accusations made against their clients were based on hearsay, bordered on incitement, and do not attain the pass-mark for ICC trials.

An advocate retained by a minister, who asked that his name be protected for reasons of lawyer-client confidentiality clause, said he was aware a senior intelligence officer, a former senior security official, and two senior members of the Cabinet have already asked their lawyers to stockpile legal defenses just in case. Recruited lawyers

Another lawyer said he was working for a minister and was aware four Orange Democratic Movements ministers and an assistant minister had already recruited lawyers and were in constant consultations on what could be their fate were Ocampo to narrow down on them.

The lawyers said their clients took Ocampos statement that he will make Kenya an example to the world on impunity seriously. The lawyers were also scrutinizing the meaning of Ocampos insistence on the words those with higher responsibility and impunity to possibly imply the key suspects could have been holders of offices of influence to mean those who possibly were in an office whose where there action or inaction led to loss of lives.

But even as Kibakis and Railas date with Ocampo receded, and with the international radar still firmly on Kenyan along with the threat of travel bans on ministers slowing reform process, the Cabinet appeared to project the image it has nothing to hide. Consequently, according to the Presidential Press Service, the Cabinet “approved Kenyas participation in the Universal Periodic Review (UPR) on compliance in human rights instruments. The review will take place next year.” The brief went on: The U.P.R. was created by the U.N. General Assembly to review the human rights record of all member countries by 2011. Following todays approval a national report on Kenya will now be prepared.”

Ocampo, who will meet Kibaki and Raila to put in place modalities for prosecution, is conducting preliminary investigations. “These are prominent people who were named in the Kenya Human Rights Report and who feel their names might be in the Waki envelope,” said a lawyer familiar with what is happening behind mask of the bravado some of the ministers have displayed.

Kenya is among five countries currently under preliminary examination. Other cases under examination by his office include Guinea, Afghanistan, Colombia, Cte dIvoire, Georgia and Palestine. Preliminary investigation means the ICC has not decided whether the Kenyan situation falls under their jurisdiction.

Law Society of Kenya chairman Okongo Omogeni explained that preliminary examinations means ICC is in the process of looking at the evidence before making up its mind whether Ocampo should prefer charges against those implicated.Evidence gathered

“The ICC is gathering evidence that will assist in deciding whether the evidence gathered and the offences alleged to have been committed fall within its jurisdiction,” Omogeni explained. Subsequently, the ICC will seek permission of ICC for issuance of warrants against the suspects to if they find sufficient evidence.

A lawyer representing a cabinet minister and two former ministers said: “They are seeking to know what options they may have to escape prosecution at The Hague,” he said, adding that the suspects are toying with the idea of Kenya opting out of the Roman Statute which set up ICC.

The Statute states that the ICC “has jurisdiction over war crimes, crimes against humanity or genocide possibly committed in the territory of Kenya or by nationals of Kenya, including killings by civilians and sexual violence.”

He said they began engaging lawyers over a year ago.

The suspects also wanted the lawyer to ask the court to gag the media from publishing the report that linked them to the mayhem.

“The clients were looking at all options to clear their names from possible prosecution. Now they want to know whether Kenya like the US can opt out of the Rome Statute,” said the lawyer.

Other suspects have already engaged local and international Lawyers to find out whether there is sufficient evidence to warrant their prosecution. “We have been consulted and we began the process by forwarding all the reports allegedly implicating our clients to human rights lawyers with the European Union who understand the working of the European court,” said the lawyer.

In its report, On the Brink of the Precipice: A Human Rights Account of Kenyas Post-2007 Election by KNCHR lists politicians alleged to have been involved in the planning and execution of the violence.

Also adversely mentioned were: business people, civil servants, spiritual leaders, retired intelligence officers, police and army officers.

Of importance, the lawyer noted, was what safeguards were put in place to ensure the investigative process was free from ethnic bias, political ideology or even government interference and manipulation.

“For example, how much information relied upon by the Waki Commission was supplied by government agencies like the National Security Intelligence Surface (NSIS) Administration Police or Provincial Administration?” asked the lawyer.

The Standard