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What ODM Case Against State at
the Hague Means
The Nation (Nairobi)
OPINION
9 February 2008
Gitau Gikonyo
Nairobi
The Orange Democratic Movement has filed a complaint at the
International Criminal Court (ICC) in The Hague, alleging that the
Government has committed the crime of using force against Kenyans
protesting against the disputed presidential election.
The opposition party has written to ICC chief prosecutor Luis
Moreno-Ocampo asking the court to investigate claims that the
Government, through its security agents, is responsible for the
killing of protesters in Nyanza and Western provinces and parts of
Coast.
In the complaint, ODM names President Kibaki and his Cabinet,
among others, as the people they want investigated and possibly
tried. The move comes at a time when efforts are being made by
eminent African people, led by former UN chief Kofi Annan, to
restore peace, and it would have serious implications on the
initiatives should there be an indictment.
The first issue is that of individual criminal responsibility
versus command responsibility. For instance, can a sitting
president be individually subjected to the ICC jurisdiction? What
crimes would he be charged with and what implications would this
have if it were to happen?
One of the preconditions for the exercise of jurisdiction by the
ICC is membership, and since Kenya is a state party the court has
jurisdiction to hear the ODM complaint.
Applicable offences
The only possible applicable offences are those of genocide and
crimes against humanity. This leaves the question of individual
criminal responsibility versus command responsibility. It is not
clear in what capacity ODM has named the President and the Cabinet,
as well as Roads minister John Michuki, police commissioner
Hussein Ali, administration police commandant Kinuthia Mbugua and
his GSU counterpart, Mr Mathew Iteere. However, it does not matter
whether they are cited as individuals or in their official
capacities.
Under international law individuals may be criminally responsible
for acts that constitute crimes under international law,
regardless of the law of their states. Under Article 25, the court
has jurisdiction over people and a person is individually
responsible for any crime within the ICC jurisdiction.
The underlying basic assumption of individual criminal
responsibility is founded upon the principle of culpability; that
is, no one may be held criminally responsible for acts or
transactions which one has not personally engaged in, or some
other way participated in.
Thus, the individual responsibility of President Kibaki and the
other named government officials would have to be established and
proved for each to be individually liable to prosecution.
The doctrine of command responsibility, on the other hand,
postulates that individuals in positions of authority, whether
civilian or military, may incur criminal responsibility on the
basis of their de facto and de jure positions as superiors. It
does not matter that one is a Head of State. The ICC statute
applies equally to all people without any distinction based on
official capacity.
The court's jurisdiction is also not fettered by any immunity or
special procedural rules which may be attached to a person's
official capacity under national or international law. A most
recent step in the trend towards securing international criminal
responsibility of high-ranking state officials was the arrest of
former Liberian president Charles Taylor.
Thus, since ODM has lodged a complaint to the ICC, the prosecutor
will analyse the seriousness of the claims and decide if there is
need to carry out an investigation and request authorisation from
the pre-trial chamber. If the chamber finds a reasonable basis of
proceeding, it will authorise the investigations.
After the preliminary examination, the prosecutor may conclude
that there is no reasonable basis for an investigation and inform
the people who provided the information.
After the initiation of investigations a warrant of arrest will be
issued at any time if the prosecutor applies to the chamber.
However, arresting an indicted person is a protracted diplomatic
issue, especially where the individual is a Head of State. For
instance, on June 4, 2003, a warrant was issued for Mr Taylor's
arrest as he travelled to Ghana with Liberian rebel groups for
peace talks.
The order was served on the Ghanaian authorities and transmitted
to the international police - Interpol. Mr Taylor addressed the
peace conference and left abruptly for home aboard a Ghanaian
plane. The Ghanaian authorities did not arrest him, and it was not
until March 29, 2006, when was he finally held.
It should also be noted that investigations are a very slow
process, and most of the cases forwarded to ICC are eventually
dismissed. As of August 2007, the office of the prosecutor had
received 2,450 cases of alleged crimes in more than 141 countries.
After an initial review, however, 80 per cent were found to be "manifestly
outside the jurisdiction of the court".
A major hurdle usually faced by a complainant is the issue of
complementarity. ICC is intended to "complement" the current
national judicial systems. Under Article 17, the court can only
exercise its jurisdiction when national courts are unwilling or
unable to investigate or prosecute. State parties are expected to
implement national legislation to provide for the investigation
and prosecution of crimes under the court's jurisdiction.
Last year, for instance, Corp Donald Payne became the first Briton
to be convicted of a war crime. He had pleaded guilty under ICC to
implementing legislation for inhumane treatment of Baha Mousa, an
Iraqi detainee, following the 2003 invasion of Iraq. He was
sentenced to one year in jail and dismissed from the army.
In the current case, all that needs to be proved is that the
Government is unwilling or unable genuinely to carry out the
investigation. Given the personalities that ODM want investigated,
it is clear that the Government would be both unwilling and unable
to genuinely investigate and prosecute them. Under the
Constitution, for instance, a sitting president is immune from all
criminal and civil actions. This clearly shows the inability to
genuinely investigate and prosecute him under the complimentarity
principle.
Serious implications
As things stand, should President Kibaki and his co-accused be
indicted by the ICC, this would have serious implications in
relation to the current peace initiative as the President would
not remain committed to the peace search. This is reminiscent of
the situation involving Lord's Resistance Army chief Joseph Kony
in Uganda. He and his deputies are all indicted by ICC for crimes
against humanity.
This is dealing a blow to the peace process going on in the South
Sudan city of Juba, with Kony reiterating that he will not leave
his jungle hideout until the ICC warrants are removed. Similarly,
when he was charged with war crimes and others against humanity,
Mr Taylor reacted by warning that there would be no peace in
Liberia unless the charges against him were dropped.
Mr Taylor's trial, however, sets a precedent in that it is the
first time a former African Head of State has to face an
international war crimes tribunal for crimes against humanity. But
it is a welcome step in the emerging efforts to make leaders
accountable for their actions. It sends a powerful message that
warlords ultimately have a price to pay.
Mr Gikonyo is an advocate of the High Court.
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