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Kenya: Press Statement by Prosecutor Moreno Ocampo; Media Statements by the EU, ICJ Kenya and Law Society of Kenya; Related Articles and Opinions

07 May 2010

Dear all,

Please find below latest information related to the recent decision by the International Criminal Court (ICC) to open an investigation into the Kenya situation

This message includes a press statement made by ICC Prosecutor Luis Moreno Ocampo (I), Media Statements by the European Union, ICJ Kenya and the Law Society of Kenya (II), and related news articles and opinions (III)

Please also take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Best regards,

CICC Secretariat
www.coalitionfortheicc.org

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I. OTP-ICC PRESS RELEASE

i. "ICC Prosecutor to visit Kenya to meet victims and listen to all Kenyans", OTP-ICC press release, 4 May 2010, http://www.icc-cpi.int/NR/exeres/F39C6639-AA8D-4F1C-BBA9-083D1DD46FB2.htm

NB: This document has been produced by the ICC. The CICC Secretariat distributes it as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The document does not reflect the views of the CICC as a whole or its individual members.

"International Criminal Court Prosecutor Luis Moreno-Ocampo will visit Kenya May 8-12 to lead investigations, and meet with victims of Kenya's post-election violence.

'As promised, I will meet the victims, listen to them, understand their views and concerns. We will investigate the crimes, protecting the victims and respecting the rights of the suspects. We will follow the evidence, and we will prosecute those most responsible' he said.

The Prosecutor's five-day programme includes meetings with all segments of Kenyan society, notably with civil society and women's groups, the business community, religious leaders, and media, including community, local and regional radio stations.

He will visit communities in areas affected by the post-election violence. Similar visits to other affected areas outside Nairobi will follow shortly on his next visit to Kenya later this year.

All of those who wish to share with the Prosecutor their views and/or information on the post-election violence will have a chance to do so, including those who have reasons to believe they may be subject to investigations or prosecution.

The Prosecutor will also participate in a town hall event focused on the theme of justice and reconciliation. He will answer questions and explain the process now that the ICC investigation has been authorized by ICC judges.

'The whole international community is with the Kenyans, all Kenyans must come together and use the law and justice as a basis for their common future. The common goal is to ensure there is no repeat of violence in the 2012 elections' said the Prosecutor."

II. OTHER MEDIA STATEMENTS

i. "Declaration by the High Representative on behalf of the European Union on the decision by the Pre-Trial Chamber of the International Criminal Court to investigate the 2007-2008 post-election violence in Kenya", European Union, 9 April 2010, http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/cfsp/113799.pdf

"The EU takes note of the ICC's decision to investigate the post-election violence in Kenya.

The EU recalls the Government's public commitments made on several instances to cooperate with the ICC. The EU is a staunch supporter of the ICC as a valuable instrument of the international community to combat impunity for the most serious crimes of concern to the international community as a whole.

The EU calls on Kenya to continue their consideration of locally-based judicial mechanisms to complement the ICC investigation. In this context, the EU also underlines the importance of an effective and credible national witness protection programme"

ii. Letter from ICJ Chair, Albert Kamunde, on "Pre Trial Chamber II's Decision on Kenya", Kenyan Section of the International Commission of Jurists (ICJ Kenya), http://www.icj-kenya.org/index.php?option=com_content&task=view&id=298&Itemid=70

"Pre Trial Chamber II's Decision to Authorise the International Criminal Court (ICC) Prosecutor's Request to Commence Investigations in Kenya
However ICJ Kenya cautions that this is just the beginning. It is at this juncture that the real challenges to realising justice for victims of international crimes arise. We urge the country to be alive to these challenges.

We urge all actors in the process to support the Court in its quest for justice and accountability by actively co-operating with the ICC in the course of investigations and eventual prosecution. The state is obliged under domestic law through the International Crimes Act to provide assistance to the Court in all aspects of its investigations.
The Pre Trial Chamber decision reaffirms that the ICC operates on the principle of complementarity which means that states, including Kenya, have the primary responsibility to investigate and prosecute crimes under the Rome Statute. This means that the Kenyan government still has a crucial role to play and should not view the decision as an excuse to dispense with its responsibility under the Statute.

Further, the decision brings to the fore the issue of Witness Protection which has not been sufficiently addressed through existing legislation and available mechanisms. Yesterday's decision calls for more urgency on the part of government to put in place urgent measures to protect victims and witnesses.

In addition, the ICC prosecutor envisaged a three pronged strategy to deal with impunity in Kenya:

1. ICC Prosecution for those bearing the greatest responsibility;
2. A Special Tribunal for Kenya to deal with mid to lower level perpetrators of the post election violence and;
3. A credible truth, justice and reconciliation process to address historical injustices which contributed to the underlying triggers of violence.

ICJ Kenya calls for full cooperation and active engagement with all these components of accountability. In the words of our national anthem : 'Justice be our shield and defender'!

Signed, Albert Kamunde (Chair of ICJ Kenya)"

iii. "Letter to Hon. Moses Wetangula Foreign Affairs Minister and Mutula Kilonzo, Justice Minister of Kenya, from Wilfred Moseti Omariba," Law Society of Kenya, March 20 2010
http://www.coalitionfortheicc.org/documents/African_Civil_Society_Letters_on_the_Review_Conference_as_of_4-21.pdf

"Your Excellencies,
We write to urge your government to seize the opportunity presented by the upcoming review conference of the International Criminal Court (ICC) Rome Statute to advance the fight against impunity in Africa.

The ICC's review conference - which will take place in Kampala from May 31 to June 11 - represents an unparalleled gathering of states, meeting on the continent, to discuss international criminal justice. The conference will thus provide a unique and timely occasion for African governments to express their views on the importance of the ICC when national courts are unable or unwilling to prosecute genocide, war crimes and crimes against humanity, and to promote a fair, effective ICC. Securing justice for victims of such crimes limits impunity and in so doing may contribute to preventing new conflicts or the escalation of existing conflicts.

The primary focus of the review conference is to consider a limited number of amendments to the Rome Statute, and a large part of the conference will be devoted to negotiations on the crime of aggression under the statute. However, a "general debate" and "stocktaking" of the Rome Statute system will also form an integral part of the conference. Notably, stocktaking will be organized around four topics that have real significance for Africa: the impact of the Rome Statute system on victims and affected communities, state cooperation, complementarity, and peace and justice.

Robust positive engagement by African governments in the review conference will send the message that African governments prioritize justice for victims and will promote an accurate understanding of African views on the ICC. We therefore encourage your government to be represented at the ministerial level, especially at the start of the conference, and to actively intervene in the stocktaking exercise.

Many African ICC states parties have already had relevant practice with stocktaking topics such as in cooperating with ICC requests or adopting implementing legislation. African states can thus promote effective development of the ICC and justice for atrocities more generally by sharing experiences from the continent during the stocktaking exercise.

The African Union has recently called upon African States Parties to "attend and effectively participate in the [Review] Conference" (para. 12 of the Decision on the Report of the Second Meeting of States Parties to the Rome Statute on the ICC, Assembly/AU/Dec.270(XIV)). Participation of this nature will require preparation in capitals long before the review conference, and we thus encourage foreign affairs and justice ministries of your government to begin to develop your country's interventions in each of the stocktaking topics as soon as possible, including through active consultation with civil society.

Finally, a ministerial-level declaration on the review conference, which could be adopted at the conclusion of the general debate in Kampala, would ensure a positive outcome to the review conference. Such a declaration could be aimed at expressing support for the ICC and its mandate in broad terms. We urge you to contribute to and support such a ministerial declaration in demonstration of your commitment to fight impunity in Africa and ensure justice for victims of genocide, crimes against humanity, and war crimes.

The ICC's review conference is approaching quickly and the opportunities that this event presents for Africa must be seized. We urge your government to fully take advantage of the conference by implementing the recommendations discussed above in order to promote justice for victims and a fair, effective ICC.

Sincerely,

Wilfred Moseti Omariba, Adv.
(D/Secretary)
Law Society of Kenya."

III. RELATED ARTICLES

i. "Yes, Ocampo, move with haste to ensure justice", Daily Nation, 2 April 2010, http://www.nation.co.ke/oped/Editorial/Yes Ocampo move with haste to ensure justice /-/440804/891966/-/view/printVersion/-/towiokz/-/index.html

"The International Criminal Court has set the stage for the trial of perpetrators of the chaos that followed the bungled elections in 2007.
Consequently, the chief prosecutor Moreno Ocampo has rolled out a plan of action, starting with a visit to Kenya next month to begin investigations to consolidate the evidence that he will eventually present to the court.
Significantly, he has expressed commitment of the ICC to protect potential witnesses, whose fate has been the subject of discussion in the country in the past few months.

Already, there is concern that some witnesses have been receiving threats and some have actually been forced to go into hiding to avoid harm.
For Kenya, the significance of the trials is that it would stem the spiral of violence that follows every election since the introduction of multi-party democracy in 1992...."

ii. "The ICC arrives in Nairobi", Parselelo Kantai (The Africa Repor)t, 12 April 2010, http://www.theafricareport.com/archives2/in-the-know/3289564-the-icc-arrives-in-nairobi.html

"...Kenyan officials are reluctant to talk about the quiet arrival in Nairobi of an advance team from the International Criminal Court, a week after its chief prosecutor Luis Moreno-Ocampo was given the go-ahead to to proceed with investigations into the political violence around the disputed 2007 general elections.

It's more than two years after the post-election violence and the safety of key witnesses has become a matter of concern. One former policeman claims his colleagues are trying to kill him to stop him talking...."

iii. "Ocampo's probe team meet Mutula before Wako", Beauttah Omanga (Standard), 11 April 2010, http://www.standardmedia.co.ke/InsidePage.php?id=2000007510&cid=4&ttl=Ocampo’s probe team meet Mutula before Wako

"Key Government officials met a team from International Criminal Court in secret as the country prepares for Luis Moreno-Ocampo's visit next month.

The ICC Chief Prosecutor is expected any time after three weeks from today to officially launch investigations into crimes against humanity committed in Kenya since 2005. The visit follows the nod he got from the Pre-Trial Chamber to investigate high-profile Kenyans perceived to bear greatest responsibility for post-election violence.

The team sent from The Hague to lay the groundwork for investigations have been meeting senior Government officials...."

iv. "Witnesses reveal dark secrets of election violence", Bernard Namunane (Daily Nation), 10 April 2010, http://www.nation.co.ke/News/politics/Witnesses reveal dark  secrets of election violence/-/1064/897116/-/dfn9maz/-/

"Fresh details of an intricate web have come to light, detailing the roles of politicians, business people and security agencies working together to carry out the post-election violence.

The revelations come in the wake of the arrival of a team from The Hague to prepare the ground for the visit of International Criminal Court chief prosecutor Luis Moreno-Ocampo next month.

The triple alliance laid the ground for the violence as far back as the campaigns leading to the 2005 constitutional referendum..."

v. "Law binds Kibaki to hand over suspects to ICC", Murithi Mutiga (Daily Nation), 10 April 2010, http://www.nation.co.ke/News/politics/Law binds Kibaki to hand over suspects to ICC /-/1064/897088/-/2lsmee/-/

"...The decision of the pre-trial chamber of the International Criminal Court at The Hague to allow Mr Moreno-Ocampo to take up the Kenya case has triggered debate over whether the President and Prime Minister Raila Odinga will agree to order the arrest of any suspects against whom warrants are issued.

But according to the International Crimes Act which Parliament passed into law in December 2008, the government has no discretion over whether to cooperate with the ICC .

Section 4 (1) of the Act demands that authorities cooperate with the ICC in keeping with the Rome Statute to which Kenya is a signatory.

The law says: 'The provisions of the Rome Statute . . . shall have the force of law in Kenya in relation to the following matters - the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests; the conduct of an investigation by the Prosecutor or the ICC; the bringing and determination of proceedings before the ICC; the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters; (and) the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests'...."

vi. "Witnesses protection key to ICC probe", Alex Ndegwa (Standard), 10 April 2010 http://www.standardmedia.co.ke/news/InsidePage.php?id=2000007411&cid=159&story=Witness protection key to ICC probe

"...Back home, before the International Criminal Court (ICC) sanctioned a probe into post-election violence suspects, there were reports of potential witnesses and human rights activists helping them being harassed or intimidated.

The threats could intensify as ICC Chief Prosecutor Luis Moreno-Ocampo launches full-scale investigations.

Attorney General Amos Wako told Parliament 3,600 post-election violence cases are unresolved because prosecution is hampered by intimidation of witnesses, calling for a credible witness protection programme.

It is against this background that Parliament's approval of the Witness Protection (Amendment) Bill 2010, putting in place bolder measures to protect witnesses in criminal trials, should be lauded.

From the onset it must be emphasised that to entirely tie the legislation to the impeding ICC trials is to miss the point..."

See also:

vii. "Key witnesses in poll violence are flown out", Bernard Namunane (Daily Nation), 9 April 2010, http://www.nation.co.ke/News/politics/Key witnesses in poll violence are flown out /-/1064/896438/-/ax4wx3/-/

viii. "ICC in Kenya to catch politicians involved in 2007 violence: Hague team in Kenya to probe 20", African Press Association/Daily Nation, 9 April 2010, http://africanpress.wordpress.com/2010/04/09/icc-in-kenya-to-catch-politicians-involved-in-2007-violence/

ix. "International prosecutor expects at least 2 Kenya election violence cases, up to 6 suspects", Mike Corder (Associated Press), 1 April 2010 http://www.therepublic.com/view/story/ce6a3e7756c044538e6d916f9ef3f934/EU--International_Court-Kenya/

x. "Ocampo to Set Up an Office", Daily Nation, 27 April 2010, http://allafrica.com/stories/201004271192.html
xi. "Now ICC probe team starts work", By Bernard Namunane and Lucas Barasa (Daily Nation), 4 May 2010, http://www.nation.co.ke/News/Now ICC probe team starts work /-/1056/912258/-/view/printVersion/-/pksbrxz/-/index.html

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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.

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