There is nowhere to run for the architects of last years post-election mayhem and Kenyas darkest moment.Experts say the chaos suspects are basically cornered and there are no legal options open for them.
Following the announcement by the International Criminal Court (ICC) that Chief Prosecutor Luis Moreno-Ocampo will swing into action, top perpetrators of the violence are headed to The Hague.
Yesterday, legal experts who spoke to The Standard said with the failure to set up a local process, the suspects have run out of options.
“The crimes the said suspects are accused of are international. They can thus not run to a local court to stop the prosecutions at The Hague. Kenya is signatory to the ICC and international law surpasses local constitutional requirements,” said LSK vice-chairman James Mwamu.
International Centre for Policy and Conflict Executive Director Ndungu Wainaina said their option “is limited to waiting for judicial mechanisms at the ICC or the local tribunal or both to defend themselves”.
Independent investigation
In a terse statement after the lapse of the September 30 deadline to set up a local tribunal, Mr Moreno-Ocampo indicated he would make Kenya an example of how to end impunity.
ODM lawyer Julius Kemboy said suspects in the Waki envelope would now wait for investigations to be completed since the ICC Statute controls the process.
Mr Kemboy said Ocampo, after evaluating the information he has, would initiate independent investigation and if he is satisfied with his findings he will present his evidence to a pre-trial court. “They have no option but wait until they are notified by way of a warrant to begin trial,” he said.
Invite Ocampo
The court, he noted, may refuse Moreno-Ocampos evidence and ask him to conduct further investigation.
And the civil society now want Justice Minister Mutula Kilonzo to make a formal referral of the post-election violence case to the ICC.
More than 20 civil organisations met in Nairobi under the Centre for Multi-party Democracy (CMD), and called for amendments to the Truth Justice and Justice Commission Act to expand the truth commissions mandate.
They want the commission to cover the colonial period and cure other legal and constitutional weaknesses.
CMD Executive Director Njeri Kabeberi said owing to failure to abide to establish a local special tribunal, the minister should now formally invite Ocampo.
Human rights lawyer Betty Murungi, however, said individuals suspected of fanning the violence are innocent until proven guilty.
“Let us not speculate on the names in the envelope. Nobody has been indicted. ICC has to investigate. We have sensationalised the contents of the envelope and we may never know what is in it,” she said on telephone.
Ms Murungi said what Ocampo received is mere information from the Waki commission, civil society and religious organisations.
And Mr Mutula welcomed the prosecutors three-pronged approaches on the post-election chaos perpetrators. He said he has been in constant touch with Moreno-Ocampo on the way forward and the ICCs position was informed by the way many Kenyans had lost faith in the setting up of a local process.
And some Central Kenya MPs welcomed the decision by the ICC to take over prosecution of key suspects of the chaos. Ndaragwa MP Jeremiah Kioni, Njoroge Baiya (Githunguri), Peter Gitau (Mwea) and Clement Wambugu (Mathioya) urged Ocampo to move fast and indict those who bore great responsibility.
Reports by Susan Anyangu, Lucianne Limo, Maseme Machuka, Protus Murunga and Francis Ngige
The Standard
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