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Failure to Confirm Charges Does Not Exonerate The Hague Six

10th January, 2012/..We take great exception at  media reports that have been emerging in recent times to the effect that the ‘Ocampo Six’ will have the leeway to run for public offices notwithstanding the outcome of the confirmation process.   

These assertions are detrimental mockery to the ethical leadership dispositions and constitute clear manifestations of contempt and disregard for the Constitution. As the country awaits the decision of the Pre-Trial Chamber of the International Criminal Court (ICC), we wish to reiterate our position that the test of integrity anticipated under the Constitution must be respected by all and sundry in this country.

It cannot be right that this test is required of other caliber of state officers but trashed for political leadership including the six suspects. This is a dangerous contagious discrimination which leads to calls for appropriate action to enforce constitutional principles and values.

As a measure of this [integrity] high test, we wish to remind the people of Kenya that the Pre-Trial Chamber II itself, in issuing the summons against the suspects, was in agreement that indeed serious crimes and violations of human rights occurred in Kenya during the post election violence.  The judges, in their ruling delivered on 8th March 2011 said that “they were convinced that there existed reasonable grounds to believe that the suspects are criminally responsible for the charges filed against them”.

Paragraph 56 of the ruling read as follows, “In view of the foregoing, the Chamber is satisfied that there are reasonable grounds to believe that [the suspects] are criminally responsible as indirect co-perpetrators under article 25(3)(a) …for the following acts constituting crimes against humanity committed from on or about 24 January 2008 until 31 January 2008…”

It further held the view that the material elements of such violations against the suspects exist, which is what informed the decision to summon them. As many will recall, even the then dissenting judgment of Judge Hans-Peter Kaul never disputed existence of criminal culpability of the suspects but rather jurisdiction of ICC in the following terms;

“…I have no doubt that the crimes alleged in the Application concerning [the suspects] fall within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law. It is essentially on this point alone that I must separate myself from the Majority of the Chamber. As I am of the considered view that the Court lacks jurisdiction ratione materiae…”

The forthcoming decision of the Pre-Trial Chamber, regardless of the way it goes, cannot conclusively determine criminal involvement of the suspects on matters that Kenyan institutions have jurisdiction.

It would, therefore, be deceitful and inappropriate for the country to whitewash these historical aspects of culpability regardless of the decision of the ICC.  Relevant authorities must initiate concurrent domestic processes that will independently and objectively investigate and conduct prosecutions of all those perceived to have perpetrated crimes during the PEV, including the six suspects.   Until that is done, and bearing in mind the evidence against them, we cannot objectively pronounce their innocence.

In addition, we urge that ends of justice for PEV victims must be served through our local justice systems as well if we are to decisively address prevalent impunity in Kenya. For the government to appear to adopt a wait-and-see approach on the ICC instead of exercising its statutory responsibility to compliment the court through local action is yet another manifestation of impunity.

In conclusion, we call on the suspects themselves to live by the constitution by stepping aside from their public offices until they are conclusively cleared of any criminal liability locally and by the ICC.  In our view, their reluctance to step aside thus far casts serious doubt on their individual judgment to hold public offices. It runs contrary to basic tenets of good governance.

 Signed By

Ndung’u Wainaina

Executive Director

International Center for Policy and Conflict

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