Analyzing the Merits of Kenya’s Inadmissibility Motion and Security Council to Consider Deferral on Friday April 8, 2011

In a filing before the Pre-Trial Chamber II dated 31st March, 2011, Kenya argues that the two Kenyan cases are inadmissible. And in a unanimous decision today, the Pre-Trial Chamber ruled that the application on inadmissibility would not be heard during appearance of the O’Campo six in the Hague this week, (for confirmation of the charges), since although the  Kenyan government is party to the Article 19 admissibility proceedings, it was not a party to the criminal proceedings against the six supects. (See story here) The Pre-Trial Chamber decided that the Prosecutor, the Defense and the Victims file responses to the government’s inadmissibility motion before April 28th at 4.00 p.m.

In the meantime, the Security Council has announced today that it will consider Kenya’s request for a deferral will be considered this month. (See story here) That announcement came after Colombia took over the Council’s rotating Presidency this month. Like the inadmissibility motion, the deferral request argues that the government is proceeding with its reform agenda so that a local tribunal can be put in place. The Security Council’s deferral discussions is scheduled for Friday April 8, 2011.  

Now that the Pre-Trial Chamber has set the end of April for parties to file submissions on the inadmissibility motion, it will be clear by then what the decision of the Security Council will be when the inadmissibility motion comes up for hearing.

The primary argument of the government’s inadmissibility case is that it has not given up its right to investigate the O’Campo six. It argues that it plans to investigate post election violence offenders based on the following timetable pursuant to the ongoing and contentious implementation of a new Constitution:

  1. End of July 2011 – report on investigations under a new Deputy Public Prosecutor and how they extend up to the highest levels. (Note the application deadline for a new Prosecutor has just closed and once the Judicial Service Commission makes its decision, the President will then make the appointment. End of July 2011 is an ambitious date to expect a report from a newly appointed Deputy Public Prosecutor under these circumstances)
  2. End of August 2011 – report on progress made with investigations to the highest levels, and on adoption of three Police Bills and reorganization of  the Police Services, including the appointment of the new Inspector General. (Again end of August 2011 is ambitious since the Bills mentioned are not ready. Further, the government’s case hangs on the theory that it needs time to implement these important changes. Yet, nothing in the inadmissibility motion filed specifically mentions any of the O’Campo six. More damning is the fact that the 2008 post election violence was the fourth major post election violence cycle with respect to which no credible investigations or prosecutions of those most responsible has/was undertaken. It is merely theoretical that two of the leading contenders for the Presidency in 2012 (Kenyatta and Ruto) will simply become subject to an investigation under President Kibaki’s government which has effectively given its imprimatur to Kenyatta and Ruto as its preferred successors).
  3. End of September 2011report on progress made with investigations and readiness for trials in light of judicial reforms. (Again, this is a theoretical possibility which presumes a deeply divided government will have enacted a credible domestic tribunal to conduct such trials).

The government’s inadmissibility case is built on conjecture and speculation – in fact a wish list of the reform agenda. If this reform agenda is followed without the usual start-stop style of the heavily divided coalition government, it will need to be financed. The Minister for Finance is Uhuru Kenyatta, one of the O’Campo six. Going by his reluctance to finance the Committee of Experts which oversaw the birth of the new Constitution and recent suspect appropriations to shore up the defense of the O’Campo six at the Hague, there is little to hope for that these new Constitutional offices will be funded to be able to effectively conduct their roles independently and without being manipulated to serve the succession politics that has already reached feverish proportions (precipitated by the Hague process and the O’Campo six) in the country.

Anyone watching Kenyan politics knows that while a large proportion of the public still supports the Hague trials (see story here ) there huge emotional rallies that took place in some parts of the country  as the O’Campo six prepared to leave for the Hague. (see for example wife of founding President Mzee Jomo Kenyatta blessing his son Uhuru and his new found political ally Ruto)

The Kibaki side of the coalition government is doing everything it can to convince the Kenyan public about the inappropriateness and inadmissibility of the trials, while Prime Minister Raila’s side has done just the opposite – a factor that does not augur well for the government’s argument on both inadmissibility and deferral.

With regard to Kenya’s inadmissibility argument, as I have noted in a previous post  the Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui in a Judgment on Appeal Against the Oral Decision of Trial Chamber II of 12 June 2008 on Admissibility of the Case held that under “Article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability.” Para. 78

The motion filed by Kenya simply asserts that “it has managed to put in place necessary reforms to investigate and try all cases at whatever level arising from the post-election violence,” para. 8. That does not sound like there is an ongoing investigation. Further, the government acknowledges that there is no domestic tribunal yet (even while asserting its willingness to do so) and making the rather untrue assertion that the ICC process is not allowing “Kenya to finish the task and to investigate and try those at all levels, particularly those at the top of political, military and administrative hierarchies, who merit being tried,” id. at Para. 10. Thus while the application makes a whole lot of the need to respect the sovereignty and integrity of national criminal justice systems and that there is no evidence that Kenya is shielding anyone or engaged in an unjustified delay, there is simply nothing to show an investigations or proceedings are underway (or that all these reforms are not really being undertaken as smokescreen to shield those most responsible from the Hague).

The motion seeks additional time and accommodation to ensure that there is ‘reconciliation, trust and cooperation’ within the coalition government so that it can effectively undertake the reforms necessary to set up credible investigation and prosecution authorities – much like other countries that have experienced similar turmoil like Kenya and which the Prosecutor’s Office has given generous timeframes to undertake investigations and prosecutions. Colombia is mentioned as one such country – see in particular Paras. 18 and 40. Incidentally the country currently chairing the Security Council this month and which has decided to have Kenya’s deferral motion discussed).

In the final analysis, while the reforms underway in Kenya are unlikely to have yielded the kind of dividends that meet the test laid down in the Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui. This is particularly unlikely by September 2011. September 2011 is too short a time frame for these reforms to have gained the kind traction necessary to undertake investigations against some of the most powerful currently serving politicians in the country. The Hague process has already triggered the high stakes 2012 Presidential race into high gear – not the kind of political climate for national trials against some of the leading contenders for high office in Kenya. Even bracketing out the political farce surrounding the Kibaki succession in 2012,  there are too many other uncertainties about the execution of the reform agenda – not least of which is that one of the O’Campo suspects holds the purse strings to its successful implementation.

In the best case scenario, one could argue Kenya should be given the benefit of the doubt – Kenya does really intend to implement all these reforms. Such a good faith case may in fact exist – but it is simply that, a theoretical possibility, a wish-list and a good one at that. There is also the reality on the ground and that does not measure up very well in favor of inadmissibility.

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