20101219
Nation

Nairobi — The government is making last-ditch efforts to save key members of the administration suspected of crimes against humanity from standing trial at The Hague.

One of the options being considered by coalition advisers and insiders is the quick appointment of a new chief justice, director of public prosecution, attorney-general and the inspector-general of police to signal to the international community that the country has a new judicial system that can be trusted to handle post-election violence cases.

They hope that the new appointments, which are laid out in the new Constitution, would be used as a bargaining chip with the United Nations and the ICC to demonstrate that the government is prepared to conduct credible local trials.

After the appointments sources familiar with the discussions told the Sunday Nation, the government would then request the UN or the Commonwealth to help identify foreign judges who can handle the cases locally.

A lawyer familiar with this thinking but whom we cannot identify owing to the sensitivity of the matter, said that it would be much easier for the suspects to stand trial in Nairobi instead of The Hague.

Although the plan makes sense, the lawyer said, it may have come too late to stop ICC chief prosecutor Luis Moreno-Ocampo.

There is also the realisation that if any of the Kenyan suspects is found guilty, they are likely to serve long jail terms of up to 30 or 50 years. Worse, the prison could be somewhere in West Africa or other foreign country with a jail arrangement with the ICC.

The revelations came as President Kibaki and Prime Minister Raila Odinga were said to be grappling with tough choices over members of the Cabinet listed by Mr Moreno-Ocampo as suspects of the post-election chaos.

An opinion poll conducted by Infotrak Harris released on Saturday found that an overwhelming 82 per cent of Kenyans would like those named by Mr Moreno-Ocampo and who hold public office to either step down or be sacked.

The gravity of the rules published by the prosecutor requiring that those named not communicate with each other over the matter as they await the court's decision to confirm or dismiss the charges is cause for concern in government.

So much so that the government is considering forwarding a request to Mr Moreno-Ocampo to relax the stringent rules now that the suspects have promised to cooperate.

The rules are particularly proving to be a nightmare for the function of the office of the head of civil service Francis Muthaura, who, as PS to the Presidency, is in constant communication with government officials including Cabinet ministers. He also chairs the crucial National Security Advisory Committee.

Also, pressure has been building from the civil society to have those named by Mr Moreno-Ocampo vacate office.

Other than Mr Muthaura, other senior members of the government named are Deputy Prime Minister and minister for Finance Uhuru Kenyatta, Industrialisation minister Henry Kosgey and his suspended Higher Education counterpart William Ruto.

Completing Mr Moreno-Ocampo's list of six are Postmaster-General and former police boss Hussein Ali and radio journalist Joshua arap Sang.

The Cabinet ministers are in a dilemma over how they would conduct business across their ministries when the need arises, including attending Cabinet meetings.

According to the rules, the suspects can only communicate about the cases through their lawyers and not directly. They are also required to keep the prosecutor's office informed of their whereabouts.

On Saturday Justice minister Mutula Kilonzo warned that the push to have the country withdraw from the ICC would complicate cases for the Ocampo Six. Mr Kilonzo said once there is a new CJ, AG, the DPP and inspector general of police, he will present the case for a local judicial mechanism.

"Those who are panicking have not understood the ICC. If we withdraw, our own citizens will be hunted like chickens. We will be putting them under enormous pressure," said Mr Kilonzo. "We cannot cut off our noses to spite our faces."

He was taking the same line as that of Mr Odinga who cautioned MPs to reconsider their motion urging the government to withdraw from the ICC. Such a withdrawal would take one year to come into effect and does not extricate the country from its obligations while it is still a member.

Mr Kilonzo warned that those who were politicising the Ocampo case that they were making it worse for the suspects.

"Kenyans should stop politicising it because they will hurt the six... Those demonstrating to support Uhuru are giving him a one-way ticket. It's extremely dangerous," said Mr Kilonzo.

The minister said that two Kenyans lawyers were denied entry to the ICC last week because of the public utterances they have been making at home.

Key lieutenants

The prospect of having their key lieutenants hauled before the ICC is reason for worry for the two principals, hence the flurry of meetings by their key strategists to come up with practical solutions.

One of the key meetings was held at the house of a Cabinet minister on December 12 after the Jamhuri Day State House party. The meeting was attended by a slew of PNU ministers at which they discussed what had by then become a hot potato - the ICC announcement.

At the informal meeting, the PNU minister also discussed what position they would take at the Cabinet meeting that was scheduled for the following day on US ambassador to Kenya Michael Ranneberger.

It had been agreed that the Cabinet look for a way out of the ICC matter, but sources have told the Sunday Nation that at the Cabinet meeting the following day, some members dissented from the informal position arrived at earlier.

On the day Mr Moreno-Ocampo made his announcement, senior officials from the US and Britain called President Kibaki and Mr Odinga asking them to demonstrate to the world that they could be trusted to shepherd complete reforms.

The details of the conversations are few, y but a White House Press release pointed to the contents.

"The path ahead is not easy, but I believe that the Kenyan people have the courage and resolve to reject those who would drag the country back into the past and rob Kenyans of the singular opportunity that is before them to realise the country's vast potential," said President Obama.