This program is supported by USAID and the people of Kenya. This report was compiled by the Centre for Community Dialogue and Development (CCDD)
Introduction by David Busienei who welcomed the CCDD centre monitors for the training while exhorting them to be keen and feel free to ask questions where they did not understand. He reiterated that the ICC process has been politicized in Kenya and it was therefore necessary for it to be demystified to avoid further confusion especially now that the confirmation of charges hearing is underway. He called on the Centre Monitors to be vigilant during the entire training as they will be the ones dealing with the Community on daily basis out there at the Centers.”Our Organization as many of you are aware has always fought against the distortion of information. The ICC process is no exception. We must always fight for our people to get the truth as it is about it”. He emphasized.
In his address Mr. Busienei highlighted the areas to be covered by the Consultant which were mainly the Rome Statute, the operations of the Court, the International Criminal Law and the Kenyan Case. He assured the centre monitors from the new Centers that they are going to be supplied with the T.V sets so that they can continue with the Core program me of the live parliament while laying more emphasis on Peace building.
A section of the Centre monitors and the officials
INTERNATIONAL CRIMINAL COURT
’For us to understand the court process and procedures in the situation facing Kenya we have to know what is the law.’ The Legal Consultant Mr. Saina Said.
The nature and purpose of the law
Definition;”Law is the activity of subjecting human behaviour to the governance of rules.
The principle objective of a legal system is the establishment of rules which are designed to regulate relationships.
The rule of law ensures that judges decide disputes in terms of existing, known and general rules.
Let’s now discuss about the International Criminal Court (ICC) its establishment, structure and jurisdiction.”He went ahead.
ICC International Criminal Court
It was established on 17th July 1998 when 120 states adopted the Rome statute.
It came into force on 1st July 2002 after ratification by 60 countries. Kenya is one of the 120 states which adopted the Rome statute.
It was established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely
Genocide, crimes against humanity and war crimes.It is the court of last resort, Its seat is at The Hague in the Netherlands although it may also sit elsewhere. The court expenses are funded primarily by states, parties and also receive voluntary contributions from governments’ international organizations, individuals, corporations and other entities.
It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine. In Kenyan case, the judiciary was incapable of mediating the electoral dispute because the opposition part ODM, refused to take its complaint of electoral fraud and widespread vote rigging to court. The judiciary was perceived as a heaven, not of fairness but of partisan political interests and therefore incapable of dispensing justice.
The failure of judiciary to set up the tribunal discloses Kenya’s inability to prosecute and renders the Kenyan situation ripe for ICC intervention.
Structure of the ICC
It is composed of four organs
Office of the prosecutor
Briefly we look at functions and composition of each organ.
Responsible for overall administration of the court with exception of the office of the prosecutor
Composed of 3 judges’ of the court, elected by fellow judges for a term of 3 years.
Consists of 18 judges organised as pre-trial division, trial division and appeal division.
Judges of each division sit in chambers which are responsible for conducting proceedings of the court at different stages i.e. pre-trial and appeal stages.
Among the notable judges are, Hans-Peter Kaul (Germany), Ekaterina Trendafilova (Bulgaria) who are judges presiding over the Kenyan case pre-trial chambers.
Lady Justice Aluoch from Kenya is one of the judges attached to the ICC
Office of the prosecutor
Responsible for receiving referrals on crimes within the jurisdiction of the court. It examines them and conducts investigations and prosecutions before the court.
It is headed by prosecutor, Louis Moreno-Ocampo (from Argentina) elected by state parties for a term of 9 years.
Responsible for the non-judicial aspects of the administration and servicing of the court.
Rationale for the ICC taking up the Kenyan situation.
The framers of the Rome statute were of the opinion that ICC would compliment not to take-over national judicial mechanisms.
ICC’s involvement is expected only where a state party to the Rome statute is unwiling or unable to prosecute and punish international crimes.
Inability – Occurs when the judicial system of a state is unavailable or has been particularly or substantially destroyed by the conflict so that the state cannot realistically be expected to carry out its duty to investigate and prosecute.
Unwillingness – envisages a situation where proceedings against the accused at the national level have commenced but are being conducted or have been conducted in a manner to suggest that the accused is being shielded from justice. The Kenyan case was because of unwillingness.
The Kenyan situation
Pursuant to the Rome Statute, the prosecutor can initiate an investigation on the basis of a referral from any state party or from the United Nation’s Security Council.
Prosecutor can initiate investigations proprio-Motu (on its own motion) on the basis of information of crimes within the jurisdiction of the court received from individual organizations.
In the Kenyan situation, the pre-trial chamber II granted the prosecution authorization to open an investigation of proprio-Motu (on its own motion).
On 8 March 2011, pre-trial chamber II by majority, issued its decisions on the applications submitted by the prosecutor to summon Wiliam Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali to appear before the court on 7 April 2011.
Reaction by Elder Melly
A Country should embrace Justice first and Peace will just be maintained. A good system should respect the Independence of all arms of Government. We have to elect good and wise leaders. We cannot achieve peace if we elect leaders who do not understand its importance.
Reaction by Lelei
Mr. Lelei appealed for the extension of the Program me to cover the entire North Rift. He said that it’s important for all the people of this Region to get this information as most of the politicians from the region have been taking advantage of the situation to advance their personal agenda.
Mr. Melly Centre Monitor Nandi Hills was worried that the Elders in the community were not taking their role seriously and that’s why the Community is going astray. “Elders have to direct and guide the community instead of being silent”.Mr Melly reiterated.
Most of the Centre Monitors along the border were of the opinion that the program me should be run for at least six months to be able to address the border problems of sporadic cases of Cattle rustling, the Land question, the Boundary problem and the Political question for which it was designed, adequately.They said it was Historic that CCDD is the first Organization to carry out an activity of reconciliation along the border and that this should be fully supported.
There is also need to back it up with a Radio Program me three times a month to address the questions that will be asked by members of the Community when they learn of the activity through the Local Media that has pledged to work with us.
Towards the end of the program me, there is need to organize a Peace meeting to be attended by all the leaders from both sides along the Border.
The training was an eye opener for many Centre Monitors and there was a lot of excitement about getting information about ICC. They promised to do their best during the implementation.
Pictorial Part of the training