At his first press conference after International Criminal Court (ICC) judges confirmed charges against four of six prominent Kenyans for alleged crimes committed in Kenya during the post election violence of 2007 and 2008, ICC Prosecutor Luis Moreno-Ocampo has described reactions of the suspects, government, and people of Kenya to the confirmation decision as remarkable.
Mr. Ocampo praised the fact that there has been “no violence” in Kenya and that “even the accused persons have responded well.”
“We appreciate that the judges explained the decision in a public session and that there have been no reports of violence as a result,” Mr. Ocampo told journalists in The Hague.
“I find this remarkable,” he added.
The prosecutor explained that the ICC’s investigation is helping to bring peace to Kenya, a country that has witnessed post election violence on more than one occasion.
“ICC intervention is helping Kenya move to a more peaceful future with no costs,” he said, adding that another post election violence in Kenya will mean “more lives lost, more people displaced and not to mention millions in money.”
Yesterday, the pre-trial chamber judges confirmed charges against four of the six suspects named by the prosecutor as being responsible for crimes committed during Kenya’s post election violence in December 2007 and January 2008. Kenya’s Deputy Prime Minister and Minister of Finance Uhuru Kenyatta, Head of Civil Service Francis Muthaura, Former Higher Education Minister William Ruto, and radio journalist Joshua Arap Sang are the persons against whom charges were confirmed yesterday. The judges decided that the prosecutor had not submitted enough evidence to establish that former Police Commissioner Mohammed Hussein Ali and Former Cabinet Minister Henry Kosgey were involved in the commission of crimes against humanity during the post election violence.
In his address to journalists in The Hague today, Mr. Ocampo paid tribute to the six suspects, whose cooperation during the proceedings had made it possible for judges to arrive at their decision.
“We appreciate the fact that the accused appeared voluntarily before the court,” Mr. Ocampo said.
Referencing the fact that the ICC is enforcing international law in Kenya, the prosecutor said that “the suspects’ attitude contributed to that…they came to court voluntarily and without them, this would have been impossible.”
He also praised the Kenyan President Mwai Kibaki who in a statement yesterday after the decision of the judges said that his government will take steps “to solve the problems of victims of violence still displaced.”
The prosecutor said that “victims do not have to wait for a conviction before they receive help. The government of Kenya has a responsibility to help its citizens and to protect them.”
The prosecutor also reacted to the decision of the judges not to confirm charges against Mr. Ali and Mr. Kosgey. He said his office will keep “investigating Kosgey and the activities of the police as well as crimes allegedly committed in Kibera and Kisumu,” where police allegedly shot at civilians. He explained that his office will submit any new evidence about the role of these two individuals to the pre-trial judges for reconsideration.
In response to a question as to whether he has a position on efforts made by Mr. Kenyatta and Mr. Ruto to run for president in Kenya, the prosecutor said that it is an issue for the people of Kenya to decide.
“I have no mandate to interfere in Kenyan issues. Who runs for president in Kenya is a Kenyan issue. It is not my place to interfere,” he explained.
The prosecutor concluded by saying the situation in Kenya, as well as his intervention in Cote d’Ivoire where post election violence also took place in 2010, sends a message to those wanting to use violence for political means that they will be held accountable.
“If you use violence to retain power, you will end in The Hague,” he said.
The ICC Prosecutor should have investigated Raila Odinga and Anyang’ Nyong’o and charge them for crimes against humanity. They both called upon Kenyans to protest in large numbers and make the country ungovernable. All media houses have electronic evidence of them saying there would be no peace without Raila becoming president. If Sang’s crime has to do with incitement to violence, what would ICC call Raila and Nyong’o utterances? Who had more influence on Kenyans, Raila or Sang? This is not to exonerate Sang but it would be lopsided to charge Sang and leave Raila out!
“He said his office will keep “investigating Kosgey and the activities of the police as well as crimes allegedly committed in Kibera and Kisumu,” where police allegedly shot at civilians. He explained that his office will submit any new evidence about the role of these two individuals to the pre-trial judges for reconsideration.”
As I have written and explained in another place:
A non-confirmation decision (when the pre-trial chamber declines to confirm a charge) is not an acquittal. Because the court has not decided on the guilt. Rather, it is an “absolutio ab instantia” in sense of the Ius Commune. And as typical with absolutiones ab instantia, the charges can be taken up anew, with additional evidence. This is explicitly stipulated in article 61 par. 8 Rome Statute:
“Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence.”
There you also have the reason why the prosecution will _not_ seek to appeal (or rather to apply for leave to appeal) against the decision with respect to Ali and Kosgey. Rather than wasting their efforts in a predictably hopeless and wasteful appeal procedure, they will use the chance to add evidence and request a new decison on re-confirmation then, maybe even for the events in Kisumu and Kibera.
So far so good for the way ICC has played its part in this historical case of Kenya. Fairness has been displayed by exonerating the former Commissioner, Gen Ali and Mr. Kosgei.
However we, Kenyans expect Gen. Ali to be back to The Hague as a prosecution witness for the fact that he was the Commissioner of Police and he MUST know who said what and who did what. after all we all saw him in the Tallying Cent re at KICC in his press conference assuring us, Kenyans that he has put in place all measures to protect Kenyans.
Finally, let the four suspects who have already appealed be accorded fair hearing, but with a rider:
They know too well that the violence occurred with the devastating effects they are accused of!!! The two of them are aspiring to be the president of this country and therefore we expect them, (as a president), to deal firmly with the perpetrators of those heinous crimes of the PEV. Therefore, in their appeal Kenyans do not expect anything short of WHO DID IT, HOW THEY BID IT AND THE EVIDENCE THEREOF, Failure to do this in their appeal, means they, and others more, should be tried and be punished accordingly, or justice to prevail and the end will justify the means.