Thursday, November 5, 2009

Kenya: Prosecutor to Invoke Proprio Motu Power As GNU Pledges Cooperation

Speaking in Nairobi today, the Prosecutor of the ICC Moreno-Ocampo has stated that he will invoke his powers (article 15 Rome Statute) to commence investigations into crimes against humanity allegedly committed during the post electoral violence. The report can be found here. He stated that he has concluded that the evidence reveals crimes against humanity and that the required gravity test can be met. More surprising - perhaps - is the fact that President Kibaki and Prime Minister Odinga, while not agreeing to refer the matter for investigations (the easier route for the Prosecutor), they have pledged to cooperate fully with Ocampo going forward.The statement by President Kibaki and PM Odinga can be found here.

What is important to note is that on the eve of Ocampo's arrival in Nairobi, the two main parties in the coalition - PNU (President's party) and ODM (PM's party) had been engaged in a bitter exchange over the role of the ICC. While there are inaudible voices within each party making the contrary point, the dominant view in the PNU - contained in an OP Ed penned by the PNU-leaning Permanent Secretary in the Foreign Ministry argued that ICC involvement would be 'premature'. See his piece here. There were suggestions that individuals within the PNU had lobbied for the Ocampo to be 'stopped' or 'prevented' from coming to Kenya.

A senior cabinet Minister from the ODM (who is known to be close to the PM) had written an immediate riposte (to the earlier piece), suggesting that those arguing for a delay in the ICC process were 'apologists' for impunity. See his riposte here. Some sort of verbal skirmish had occurred that eventually led to the PS's piece - which could have been considered a GNU position - to be attributed to the government official in his personal capacity. Incidentally, he was in Kenya's delegation to Rome in 1998.

This narration is relevant for at least two reasons. First, the 'reluctance', or 'refusal' by the President and PM to refer the situation to the ICC by themselves as they should have (it would have been the easy way out, as the prosecutor need not seek authorization from a Pre-Trial Chamber to commence formal investigations) - reflects the politics within the GNU. Neither the President nor the PM would like to be seen to be essentially authorizing publicly the prosecution of some of their closest supporters. Invocation by the Prosecutor of his power provides political cover.

Secondly, I believe that it has a bearing on future government behavior - on whether the pledge to cooperate means anything. The peaceful and orderly media conference at which Ocampo spoke belies the deep divisions within the GNU on the ICC issue. There are highly placed individuals who are for and against the ICC process within both parties. The real test is yet to come. It remains to be seen whether the Principals will contain disruptive elements and establish a sustainable cooperation relationship with the Court. Crucially, the much-criticized Attorney General - recently banned from traveling to the US for allegedly 'impeding reforms and aiding impunity' - remains the technical focal point for cooperation. All requests for cooperation from the Court will be addressed to his office. The police - also implicated in the violence - remain key in providing security and other forms of assistance to ICC investigators and staff. Moreover, the Government has to issue travel visas to ICC agents, arrest suspects and provide protection for witnesses and victims.

The government's commitment can only be gauged once this process begins. Clearly, the real test lies ahead. It is noteworthy that some are already predicting that cooperation is unlikely to be forthcoming from government, and that in essence, Ocampo 'has left empty-handed'. See analysis here.

PROCEDURE

In terms of procedure to be followed going forward, the Prosecutor is required to make his case to the judges of a Pre-Trial Chamber (article 15.3 Rome Statute) arguing convincingly that there is reasonable basis to proceed with investigations (and that the Court will not be wasting scarce resources on unfounded investigations). Ocampo has stated that he will do this in December. If they agree with him, the judges (or judge) will then issue authorization to the Prosecutor to open formal investigations into crimes committed in Kenya (article 15.4 Rome Statute). Kenya will then become a 'situation country' in Rome Statute parlance.

The judges could equally reject the Prosecutor's request, if they conclude that there are is no reasonable basis to proceed: ie that evidence brought before the Court does not reveal that crimes against humanity have been committed; or that the crimes are not sufficiently grave as to warrant an ICC investigation (article 15.6 Rome Statute). According to the standard developed by the Office of the Prosecutor, at least four elements are considered when determining gravity: the scale of crimes (no of people killed); impact of crimes; the nature of the crime(s); and the manner of their commission.

In this event (the judges refusing to grant authorization to open formal investigations), the Prosecutor has the option of availing to the judges additional supporting information at a later date (article 15.5 Rome Statute). He is obliged to inform organizations, victims and individuals that supplied information to map the way forward (article 15.6 Rome Statute). This could include these entities availing more information to the Prosecutor that goes to establish the Prosecutor's case that there are reasonable grounds to proceed.

It will get interesting, that is for sure!

Watch the Press Conference (Ocampo, President Kibaki and PM Odinga) below:

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