Something that we might all want to explore further is the reason behind the frantic efforts by

MPs to get us out of the ICC. This is because (Fact 1): Post Election Violence happened in
Kenya between December 2007 and February 2008, and nothing has been done to bring those to
book to account locally. Over 1,300 Kenyans died, over 3,000 women were raped, over 600,000
were forcefully relocated from their homes and businesses, and millions were traumatized for
life. (Fact 2): The ICC Process was an option chosen by parliament against two efforts by the
government to institute a local process. 'Don't Be Vague, Go to the Hague' was the rallying call
of a majority of the MPs. (Fact 3) Withdrawing Kenya from the Rome Statute at this point has
absolutely no effect on the 2 cases already instituted at the ICC, the governments obligations to
co-operate, and on the expectation by the ICC that the six individuals already mentioned will be
called in should the court decide they have a case to answer. (Fact  4): Hons. Uhuru Kenyatta,
William Ruto & Henry Kosgey, as Amb. Francis Muthaura, Major Gen. Hussein Ali & my
friend Joshua Sang, have all publicly stated that they are confident that they will be able to prove
their innocence if called upon to do so at the Hague, and that they will honor any summons
issued by ICC. (Fact 5); We go back to another general election in less than 20 months, and we
still have IDPs of the 2007 PEV living in camps.

An international lawyer representing former Liberian President Charles Taylor at The Hague and
a prosecutor at the same court have requested the Government to form a local tribunal to try
suspects of post-election violence.Courtenay Griffiths, who is defending the Taylor on charges of
war crimes, and Sir Desmond De Silva, chief prosecutor against the former president, said it
would be more productive if Kenya domesticated the process.They said “the greatest drawback
of the international courts is the lengthy of time they take to completion. A hybrid kind of forum
will garner broader local support, too.”

“The advantages of it are obviously a lot more. Judges at the international court do not appreciate
the cultural contexts under which these crimes happened. A court with local judges will greatly
enhance the legitimacy of the outcome”

The reason most Kenyans support the ICC is because nothing is happening. It's not only the six
people who bear responsibility for the crimes that happened. Right now there are IDPs whose
land has been taken away and people are living in that land or their former homes. At very least
the people these people should be evicted/arrested.As for the constitution a few issues come to
mind

1.  To pick top officials of the "independent" judiciary through the advice of people who are
likely to be tried by the local judiciary causes what seems like a conflict of interest.

2. To have the head of prosecution as the same person who is representing one of the accused
brings to fore an interesting question around the office of the prosecutor. While It may be that as
a lawyer he should not be denied a chance to go into that job by mere fact that he represented one
of the people he may prosecute, it is important to note the following. How is likely to ignore the
briefings that he is been given by his client within the lawyer-client confidentiality? Unlike a
judge he may not be able to recuse himself as there is only one office of the director of
prosecutions. His Client may in future have a valid argument that he may not receive a fair trial
because the prosecutor is unlawfully privy to his confidential details.

3. If we need to show seriousness in implementing the constitution and setting up local

mechanisms, should we not go back to the drawing board and reconstitute the top judicial
nominations through advertisements. This is the ultimate public good and neither Raila nor
Kibaki should use the constitution to push for their private interests.

4. The proper implementation of the constitution is the Easiest ONLY MAJOR way to reduce the
tensions in Kenya

The advantage of a local tribunalis that it could sit anywhere in the world. It will also call for
the formation of magistrate courts that will be located in places of need depending on how the
areas were affected by the post election violence.
 AN EXCERPT FROM JUSTICE MINISTER MUTULA KILONZO

The Government’s handling of the ICC process and the slippery Constitution implementation has put
Justice Minister Mutula Kilonzo in a spot. The Standard On Sunday’s Senior Political Writer, OSCAR
OBONYO, interviewed him on a wide range of issues. Here are excerpts:

Why are you opposed to the Vice-President’s shuttle diplomacy to seek support of the AU to pull out of
the Rome Statute or defer the cases?

There is a difference between opposition and expression of legal policy. Article 16 of the Rome Statute
does not recognise any continent, whether Africa or otherwise, as an organ for managing the Rome
Statute. It recognises Chapter 7 of the Charter for the United Nations and designates the Security Council
as the only organ that can seek deferral during either investigation or prosecution. To the extent that
Prosecutor Luis Ocampo’s investigation is completed and to the extent that no prosecution has
commenced deferral does not arise at this point.

What effect will pulling out of the Rome Statute have on Kenya?

It would have severe consequences, especially if we also repeal the International Crimes Act. These
crimes can only be prosecuted under the Rome Statute or Section 8 of the Constitution. The third option
is International Customary Law, which would make Kenyans vulnerable to arbitrary arrests or
prosecutions in all manner of states. We would not enjoy the protection of due process of law under the
Statute or Kenyan law. We would be like orphans.

What is the difference between deferral and referral and what are the benefits and challenges of either?

The Rome Statute has no provision for referral. But Article 16 provides for deferral if the Security Council
so resolves. But such a deferral can only be for twelve (12) months and only occurs during investigations
or prosecution. The popular expression during the debate for Local Tribunal that "Don’t be vague it is
Hague" dictated that deferral was not an option for Kenya during Ocampo’s investigations.

Is the notion of setting up a local tribunal to try the Ocampo six still viable?

Yes. Under the Constitution what is required is a judicial mechanism under Section 8 of Kenya’s
International Crimes Act. However, a determination of whether international crime occurred in Kenya is
yet to be made. This explains why at this point I insist on the ruling by ICC on Ocampo’s application of
last December.

How easy or hard is it to convince the UN Security Council that Kenya is capable of trying the PEV
suspects?

Hard. The refusal to set up a local judicial mechanism by Parliament followed by the resolution to
withdraw from the ICC, together with the threatened Bill for repealing the International Crimes Act makes
it next to impossible to obtain a unanimous resolution as required by the Security Council at this point.
Moreover, Kenya must make a case that proceeding with the case poses a danger to international peace.