Global Policy Forum

Panic Over Ocampo’s List to ICC




By Lucas Barasa

March 6, 2010

The handing over of list of suspected perpetrators of Kenya's post-election violence of 2008 to the International Criminal Court judges has caused fear, panic and anxiety across the country especially in areas that were hardest hit by the chaos.

Senior officials of the three arms of the police: Regular, Administration and General Service Unit have also not been spared as ICC Chief Prosecutor Luis Moreno-Ocampo stated that they were used in the chaos.

The Waki Commission report on post-election violence linked more than 400 deaths of the 1,133 people killed during the two months of the post election violence to the police.

A survey by the Sunday Nation in some of the areas that were affected by the skirmishes indicated that many of the suspected financiers and organisers of the chaos had been thrown into a panic.

There is also fear among the victims.

"No one knows what is going to happen. It is as if it is now clear some of the perpetrators will be taken to the Hague," Mr Ken Wafula whose organisation, Centre for Human Rights and Democracy has been championing for rights of victims of the chaos, said.

A former Eldoret councillor Mr Kipkorir Menjo said: "People are fatigued. They want the truth to come out. The naming of the suspects will bring new political equation ahead of 2012 polls."

The Kenya National Commission on Human Rights whose report together with that of the Waki Commission is being used by Mr Moreno-Ocampo to push for the trial of the suspects said the biggest part will be if prosecutor will be authorised to conduct investigations and later demand that the suspects be handled to ICC.

"If the names are made public will there be political will to hand over the suspects to the ICC. President Kibaki refused two ministers to step aside to allow investigations of graft in their ministries, will he accept to hand over some of the ministers to the Hague?" KNCHR vice-chairman Hassan Omar, questioned.

Mr Omar said following the handing over of further information to the pre-trial chambers by the prosecutor, it is expected the judges will expeditiously deliberate on the application within shortest time possible.

"The fact that the judges asked for further information means they had started working of the prosecutor's application which they have been having for the last four months," Mr Omar said.

If granted the request, Mr Omar elaborated, Mr Moreno Ocampo could come to the country soon to start his investigations and within four to six months Kenyans could be able to know the names of suspected key perpetrators of the killings.

Mr Omar agreed that the handing over of the 20 names had caused anxiety with many Kenyans wondering whether the authorisation will be allowed, who were in the list and that the more the process delayed the country would be nearing the 2012 elections.

"The prosecutor should be allowed to come as soon as possible when there are still avenues to collect evidence and ensure witnesses are protected," Mr Omar said.

The vocal vice-chairman said although the prosecutor had given 20 names they could be increased or reduced depending on investigations. The names, he said, were only given to clarify to the pre-trial chambers the kind of investigations to be done and the levels of the perpetrators.

He said by naming the three arms of the police, Mr Moreno-Ocampo showed that there were more people he needed to interrogate.

Once the list of the perpetrators is made public the credibility of the public office holders will be diminished and Mr Omar said they would be expected to step aside.

"It would be impractical for them to continue with functions of their offices," he added.

Mr Moreno-Ocampo could also be required to summon some of those named to the pre-trial chambers if he gets hurdles in his investigations.

Mr Moreno-Ocampo has accused leaders from across the political divide and businessmen over their role in the post-election violence.

Details of Mr Moreno-Ocampo's submission to the Pre-Trial Chamber show how the suspects planned and executed what he refers to as a "criminal policy" against civilians.

Their motivation, he says, was to retain or gain power.

At least 1,133 people were killed and more than 650,000 evicted from their homes in the wake of the madness that followed Kenya's disputed 2007 presidential election.

Mr Moreno-Ocampo says the 20 leading suspects hired, financed, and transported gangs to kill, destroy, and block roads.

He told judges at The Hague on Wednesday that while PNU used State agencies, their opponents in ODM used criminal gangs to execute their politically motivated schemes.

Mr Moreno-Ocampo has asked the judges in the 19-page submission to keep the lists of suspects confidential.

Naming the suspects publicly, he says, may prejudice independent investigations and endanger the safety of potential witnesses.

He adds that Kenyan authorities had not carried out any investigations or prosecutions targeting the 20. The prosecutor says the violence comprised hundreds of incidents with varying degrees of organisation.

Inflammatory statements and hate speech disseminated via radio, e-mails, and SMS before the elections were part of the strategy to incite the public, he says. PNU and ODM channelled their criminal policy through community structures, he says.

And in related news, Kenyan lawyer Professor Githu Muigai has been admitted to the International Criminal Court list of counsel, meaning he is eligible to represent suspects facing trial at The Hague.

The ICC wrote to Prof Muigai on Thursday informing him of the decision. Regulation 73.1 of the court's rules requires that the ICC prepares an approved list of counsel to ensure suspects receive the highest level of legal representation at the court.

Prof Muigai will also be eligible to represent other suspects facing war crime trials such as Congolese militia leader Laurent Nkunda.



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