20110403
Nairobi Star (Nairobi)

The government has filed a request with the International Criminal Court to hand over all the reports on post election violence in readiness for a local process scheduled to start after September this year.

In its challenge on inadmissibility filed by two British lawyers Sir Geoffrey Nice and Rodney Dixon, the government says the six month deferral period which it has requested will enable it to set up the local tribunal to try the violence suspects.

The government says the circumstances which obtained when the pre-trial chamber authorized investigations in March 2010 have since changed. The government argues that the enactment of a new constitution had greatly improved Kenya's capacity to handle the trials.

The government also promises to continue investigations up to September when it hopes it will have put in place all systems for thorough and independent trials. It also commits itself to providing regular reports to the court. "The government hopes the prosecutor may share the outcome of his investigations to date with the appropriate Kenyan authorities in order to assist the Kenyan investigations. The government will be enthusiastic in exploring ways in which the prosecution could continue to co-operate with the Kenyan authorities in the future,"said the application.

Surprisingly, the government claims that investigators continue to be dispatched into the field to collect evidence and lay the groundwork for local trials. The investigators are hoping to rely on the findings of the various international and national bodies, including the Waki Commission to guide them.

The ICC chief prosecutor Luis Moreno Ocampo relied on these reports as well as those filed by his own investigators to come up with his list of the six suspects whom he believes hold the greatest responsibility for the violence. It is on the basis of these reports and his own findings that he drew up the charges which the six are expected to respond to when they appear before the ICC next week."An updated report on the state of these investigations and how they extend upwards to the highest levels and to all cases, including those presently before the ICC, will be submitted by the end of July 2011," the government says in its application.

The government seeks to explain the lengthy delay in setting up the local process to "immense challenges" the country has faced since the violence. It says these have steered the country "step by step to the point it has now reached of being able to exercise its sovereign right to investigate and try its citizens."

It also attributes the delay to the challenges posed by the coalition which came about as a result of the violence. Saying it was the first of its kind in the country, the lawyers claims the reforms had been delayed due to "differences and tensions" within the government and parliament."They (differences) should not be seen as inimical to this application in any way but rather should be acknowledged as a sign of health in a modern, pluralistic, parliamentary democracy, especially one that has a coalition government (as a majority of countries around the world probably do)," it says.

In the application, the Kenyan government demands respect from the court saying it merits the respect and should not be treated as if it was unwilling and un-cooperative. Rejecting the application will imply that the ICC did not respect the government.

On the court's earlier explanation that an admissibility challenge should be based on ongoing proceedings against the six suspects summoned at the ICC, the government says that its investigations will touch all levels but does not make a commitment on the six."The government accepts that national investigations must, therefore, cover the same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC. The Kenyan national investigative processes do extend to the highest levels for all possible crimes, thus covering the present cases before the ICC,"the application says.

It claims that its investigations against low level perpetrators will form the foundation for extending investigations to senior leaders associated with the ODM and PNU for the most serious incidents.

The government says to reject Kenya's application to try its own citizens in the would disorient countries that are seeking to strengthen their national jurisdictions as well as to those that are considering becoming parties to the Rome Statute."It could even be regarded as sending an inappropriate message to those major countries - including some permanent members of the Security Council - that have not ratified the Rome Statute and who face or will face in time moral pressure to join the ICC and to make it a court of truly universal jurisdiction," the application reads.

In the application, the government cites the enthusiasm shown by the Charles Nyachae-led Commission for Implementation of Constitution saying it was pushing hard on reforms. It makes no reference to the Truth, Justice and Reconciliation Commission work.

The lawyers asked to be given an opportunity to address the court next week during the initial appearances of the Ocampo six. They also asked for a status conference to be convened between the government and ICC to discuss the timetable of the local prosecutions.

Meanwhile, Ocampo yesterday lost in his plea to appeal against some aspects of the pre-trial chamber ruling delivered last month which failed to pin down the government for its role in aiding Mungiki carry out attacks in Nakuru and Naivasha; the shootings in Kisumu and Kibera and to admit that forced male circumcision was sexual crime.

The ICC Judge Ekaterina Trendafilova dismissed Ocampo's appeal saying he had missed the point and misunderstood their earlier ruling.