President Kibaki will have no alternative but to hand over key allies in his Cabinet suspected of having committed war crimes if Luis Moreno-Ocampo succeeds in securing indictments.
The decision of the pre-trial chamber of the International Criminal Court at The Hague
to allow Mr Moreno-Ocampo to take up the Kenya case has triggered debate over whether the President and Prime Minister Raila Odinga will agree to order the arrest of any suspects against whom warrants are issued. But according to the International Crimes Act which Parliament passed into law in December 2008, the government has no discretion over whether to cooperate with the ICC . Section 4 (1) of the Act demands that authorities cooperate with the ICC in keeping with the Rome Statute to which Kenya is a signatory.
The law says: “The provisions of the Rome Statute . . . shall have the force of law in Kenya in relation to the following matters — the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests; the conduct of an investigation by the Prosecutor or the ICC; the bringing and determination of proceedings before the ICC; the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters; (and) the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests.”
This means one of the last remaining hurdles to securing justice for the victims of the blood-letting that followed the last General Election – the failure by the government to arrest suspects – has been removed.
Albert Kamunde, the chairman of the International Commission of Jurists (ICJ) Kenya chapter, said authorities must comply with international law. “Since Kenya ratified the Rome Statute and has domesticated the statute, it has an obligation to cooperate. This is what the minister (for Justice Mutula Kilonzo) has been saying, and we believe that is the government’s position,” he said. ICC officials arrived in the country last week to formally begin investigations that could see senior politicians behind the campaign of violence waged after the disputed election face trial. At least 1,300 are estimated to have died in the violence. Mr Moreno-Ocampo contends that politicians, prominent business people and community leaders instigated and financed the violence.
A 2-1 majority ruling at the ICC pre-trial chamber allowed the chief prosecutor to investigate war crimes committed in Kenya. The judges relied on reports of the Commission of Inquiry into Post-Election Violence headed by Justice Philip Waki and other reports like the Kenya National Commission on Human Rights (KNCHR) investigation into the violence.
Cabinet ministers Uhuru Kenyatta and William Ruto have gone to court seeking to have their names expunged from the KNCHR report.
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