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Kenya on Edge

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Human Rights Indictments Roil Kenyan Politics and Threaten Peace

February 14th 2011

Latin American Topics - Luis Moreno Ocampo
ICC prosecutor Luis Moreno Ocampo

International Criminal Court (ICC) chief prosecutor Luis Moreno Ocampo on December 15, 2010 accused six high-profile Kenyans of committing crimes against humanity during post-election violence in 2007 and 2008. The six on the list read at The Hague are: Deputy Prime Minister and Finance Minister Uhuru Kenyatta, cabinet secretary Francis Kirimi Muthaura, former police Chief Mohammed Hussein Ali,  who are thought to be allies of President Kwai Kibaki; as well as minister for industrialization Henry Kosgey,  suspended education minister William Ruto, and radio personality Joshua Arap Sang, who are thought to be allies of Prime Minister Raila Odinga.

In particular, Uhuru Kenyatta – the son of Jomo Kenyatta, Kenya’s first president -  is accused of murder, rape, deportation and persecution, together with Muthaura and former police Chief Hussein Ali.  They are also alleged to have instructed the police to allow a Kikuyu criminal gang to carry out reprisal attacks against ethnic groups perceived to support the opposition.

In Moreno Ocampo's submission, Kenyatta is described as the focal point between the Party of National Unity,  Kenya African National Union Party, and the banned religio-social organization known as the  Mungiki. He is alleged to have given gang leaders logistical and financial support. Kenyatta has denounced the accusations and says that Moreno Ocampo has played political favorites.

A second case, featuring similar charges, targets the opposition politicians Ruto, Kosgey, and Sang. The latter is alleged to have used his Kalenjin-language radio show "to collect supporters and provide signals to members of the plan on when and where to attack.” The six are accused of planning and inciting ethnic violence in the Rift Valley province where the worst attacks took place. All the six men have denied the charges and have vowed to clear their names.

Supporters of some of the six Kenyans accused by Moreno-Ocampo say that he has politicized the issue in Kenya and have therefore supported the current government’s efforts to have the trials deferred. However, the Kenyan government faces an uphill struggle at the UN Security Council to defer the cases as it will take only one of the five permanent members of the council to deny the request. The five permanent members of the security council are: China, France, Russia, United Kingdom and the United States. Only China has shown indications of supporting Kenya’s quest to have the trials deferred.

To convince the UN Security Council, Kenya must demonstrate that there is a threat to peace if the 'Ocampo Six' are tried at The Hague. It must also prove that it can set up a credible local mechanism to try the suspects within a year. The political climate is rife with accusations, as evidenced by statements by Deputy Prime Minister Uhuru Kenyatta who said that he will ignore an order by Moreno Ocampo barring the six suspects from holding meetings and consulting.

In a press statement, Kenyatta said he was willing to appear before the court voluntarily. "My conscience is clear, has been clear and will always be clear. I have committed no crime." Speaking on February 8 on a radio talk show, Kenyatta reiterated his earlier sentiments that politics played a bigger role in Moreno Ocampo’s decision on who should be on his list, saying it was not a coincidence that the prosecutor opted for three people from each side of the coalition government. "The prosecutor betrayed his actions as mere politics the moment he declared that he would be prosecuting three people from each side. It begs the question, whether he was looking for a balanced team similar to a football or volleyball one," he said.

Speaking on February 8 on a radio talk show, Kenyatta reiterated his earlier sentiments that politics played a bigger role in Moreno Ocampo’s decision on who should be on his list, saying it was not a coincidence that the prosecutor opted for three people from each side of the coalition government. "The prosecutor betrayed his actions as mere politics the moment he declared that he would be prosecuting three people from each side. It begs the question, whether he was looking for a balanced team similar to a football or volleyball one," he said.

Moreno Ocampo said he did not have evidence to pursue charges against President Kibaki and Prime Minister Odinga. "We follow the evidence where it takes us. We are not taking into account political responsibilities... there are political debates, but it is not my responsibility," the Argentine Moreno Ocampo said. He said the six were the most responsible but there were many others that Kenya could decide to prosecute.

Kenyan police have been put on alert in case the announcement sparks renewed clashes. And the president has also issued a statement appealing for calm. Cardinal John Njue, who heads the Catholic bishops of Kenya, has also called for calm and an end to divisions in the country which is still reeling over the post-election violence of 2007 and shaken by a recent constitutional referendum that changed the country's judicial system.

President Kibaki said the ICC process had only just begun and that until it had been completed any other calls for action to be taken against the six would be "against the rules of natural justice". He added that he was "fully committed to the establishment of a local tribunal.”

President Barack Obama called on the country to cooperate with the ICC. "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," Obama said.

Cardinal John Njue, who leads the conference of Catholic bishops, has reiterated calls for peace and an end to divisions. While the bishops support the Hague option, they have also called for the local tribunal option to try the perpetrators.

Each of the so-called ‘Ocampo Six’ will be served with court summons, but if they fail to turn up or if they attempt to hinder the investigation -  for example by intimidating witnesses - Moreno Ocampo says he will request arrest warrants. Ocampo will present his cases to judges in the pretrial chamber, who will rule early next year on whether the evidence merits the request for summons.

Moreno Ocampo's term ends in mid-2011, while a search for his successor has begun. He is a famed investigator and legal expert from Argentina. He was one of the principal prosecutors of Argentine military officers who governed Argentina during the 1970s and 80s, later tried and convicted for the torture of detainees and systematic denial of basic human rights.

Cutting Edge Senior Correspondent Martin Barillas also edits Speroforum.com.


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