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| The GEMA meeting in Limuru was an exercise in futility |
It is pointless for Gema to petition the ICC to postpone its case against Deputy PM Uhuru Kenyatta. ICC spokesman Fadi Abdalla has said said only the prosecution, the defence and the victims' representatives can argue for postponement of a case in the ICC calendar. And even then, the judges have the final word. “Aside from the parties to the cases, any other submission has no effect on the proceedings. Such decisions cannot be taken based on political considerations but rest strictly on legal ones,” says Abdalla.
Last Friday in Limuru, the Gikuyu-Embu-Meru Association decided that it will endorse Uhuru as its presidential candidate and look for two million signatures to petition the ICC to postpone the case against Uhuru until after general elections. "It is a stated objective of the ICC that it does not wish to interfere with our constitutional right to elect a candidate of our choice, Gema therefore petitions the ICC to reorganise its diary to ensure that Kenyans are not deprived of their constitutional right to elect leaders of their choice in free, fair and all-inclusive elections," Gema said in a completely misguided statement.
The delegates at the rally, which Uhuru attended, said they would block any attempt to take him to the Hague. But Abdalla warns that the court, at the instigation of the prosecutor, could issue arrest warrants if the court believes that Uhuru might not honour the summons.
Abdalla says that the accused should have no contact with victims and witnesses, refrain from corruptly influencing witnesses, refrain from tampering with evidence, refrain from committing further crimes, and attend all the hearings at the ICC. “By and large the suspects have kept to these conditions. However the judges have severally said before that if any of these conditions are not adhered to, the voluntary summonses to appear will be substituted with warrants of arrests,” Abdalla warns.
Once the trial starts, the four will have to go to the Hague. The trial judges will determine whether to voluntarily summon them or issue warrants of arrest. The decision will be based on the likelihood of the four absconding and a review of how well they have adhered to the conditions. “These conditions were not just applicable at the pre trial phase only. They are applicable even now in the preparatory to trial stage. At trial, the judges will decide whether to keep the conditions, to enhance them or reduce them, depending on the circumstances,” Abdalla says.
There is no time frame for the ICC president to constitute a trial chamber for the four but he says, “it will be soon.” Two weeks ago, the ICC registry submitted the decision confirming charges against the four to the president. That submission set in motion the trial stage. Abdalla confirms that the trial will not wait for the accused's appeal on jurisdiction to be finalized. On the recent incident where an alleged prosecution witness recanted his testimony, Abdalla says it "was not unexpected or out of the ordinary" but must be done before the ICC judges. “It can only happen before the judges and not in the media. Outside of that, the recantation would be of no relevance to the court,” he says.
The penalty for false testimony in the Rome Statute is five years imprisonment. He says Kenya can still challenge the admissibility of the two Kenya cases but must first “demonstrate exceptional circumstances." Last year, the government unsuccessfully challenged the admissibility of the Kenya cases in the Hague. The government also lost when it appealed against the ruling. Two British lawyers from that appeal, Geoffrey Nice and Rodney Dixon, joined a ten member panel formed earlier this year to advise the government on the ICC. The report by the panel released last week explored the possibility of another admissibility challenge.
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