The International Criminal Court (ICC) has formally received a request by Azimio La Umoja One Kenya coalition to investigate the “killing and maiming” of its supporters by police.
The Office of the Prosecutor (OTP) told the Sunday Nation that it has the letter detailing individuals the opposition says were killed or wounded by security officers.
The office neither confirmed nor denied if the grounds cited meet the threshold for the pre-trial chamber to authorise investigations. It cited Article 15 of the Rome Statute that bars it from making comments or sharing details of the information.
“Under article 15 of the Rome Statute, any individual or group may send information (communication) on alleged crimes to the ICC prosecutor, who is duty bound to protect the confidentiality of the information received,” the OTP said.
The Office of the Prosecutor, therefore, does not comment on such communications, beyond confirming receipt… if the sender has made that fact public.”
According to Article 15 of the Rome Statute, the Prosecutor shall upon receipt of such communication “analyse the seriousness of the information and may seek additional information from the (member) state, organs of the UN, intergovernmental or non-governmental organisations”.
In the event the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, the office shall submit to the Pre-Trial Chamber a request for authorisation.
“If the Pre-Trial Chamber…considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the court, it shall authorise commencement of the investigation, without prejudice to subsequent determinations by the court with regard to the jurisdiction and admissibility of a case,” says section 4 of the Article.
But if after examination the prosecutor concludes that the information does not constitute a reasonable basis for an investigation, the office will inform Azimio La Umoja One Kenya coalition that the cited grounds fall short of the set threshold.
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Bobby Mkangi, a constitutional lawyer, says the request by Azimio the appears premature. He describes ICC as a court of last resort.
Mr Mkangi says ICC is likely to ask the opposition to provide evidence that the local system has failed or is unwilling to investigate the claims made in the letter.
“It is for the authority to determine threshold. I can foresee ICC asking if the opposition invoked local mechanisms. Azimio has to demonstrate that the matter was raised with the local authorities and there is a reason to believe that they are unwilling or incapable of dealing with it,” Mr Mkangi says.
He adds that on the face value, the evidence cited by the coalition in the letter may not be sufficient.
“The rule is that he/she who makes a claim has to prove. They could be having further evidence to corroborate the claims in the letter because from the face of it, what they have provided so far is not cogent enough,” he adds.
Lawyer Charles Kanjama says there was a general consensus within the legal fraternity that the grounds cited by the opposition significantly fall short of the threshold by the ICC.
Mr Kanjama says that it would be difficult for the opposition to demonstrate that local authorities had failed to investigate the alleged killings that took place barely weeks before they sought the intervention.
“ICC only takes up a case when it feels that it cannot be handled by the member state. These are allegations of things that happened in March and you claim that the national authorities have failed to act. It does not meet the threshold,” says Lawyer Kanjama.
“If ICC was to lower the threshold and look at the Kenyan case, it would be overwhelmed because it would mean taking up many cases that would crowd out serious ones, like what is currently taking place in South Sudan,” he adds.
In the letter, Mr Odinga, through lawyer Paul Mwangi, wants ICC Prosecutor Karim Khan to investigate Inspector-General of Police Japhet Koome for violating the Constitution by declaring the opposition protests illegal.
The coalition has listed an alleged special squad of police created by Mr Koome to unleash terror on its supporters.
The IG in a recent response, dismissed the letter as “a mix of propaganda and half-truths”, saying it left out victims of criminals who took advantage of the protests to loot from businesses and destroy property.
“In that letter have they talked about the Kisumu businessman who was crying? Did you see him saying he was rendered bankrupt in one day? Have they talked about a supermarket called Muhindi Mweusi? In one day somebody became a pauper by losing Sh20 million. In that letter, has that been mentioned or is it just mentioning Koome?” he posed.
On December 15, 2010, former prosecutor of ICC Luis Moreno Ocampo named six Kenyans suspected to have masterminded the 2007/2008 post-election violence that left 1,133 people dead.
Among those named were President Ruto, Mr Kenyatta, former head of the civil service Francis Muthaura, former police commissioner Hussein Ali, former Tinderet MP Henry Kosgey and Journalists Joshua Sang.
Mr Ocampo applied for two cases before the ICC on the post-election violence and included Mr Ruto, Mr Kosgey and Mr Sang in the first case accusing the trio of crimes against humanity, including murder, forcible transfer of population and persecution.
In the second case, Mr Muthaura, Mr Kenyatta and Major Gen. (Rtd) Ali were all accused of crimes against humanity, including murder, forcible transfer of population, rape and persecution.
All the cases were either dropped or thrown out for lack of sufficient evidence. This was after some of the witnesses in some of the cases mysteriously died while others recanted their evidence. BY DAILY NATION