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Daily Nation : February 16th 2014
30 | Sunday Review SUNDAY NATION February 16, 2014 Governor Mutua urges Kalonzo to unite Wiper, Ukambani BY BOB ODALO @odalobob firstname.lastname@example.org Machakos Governor Alfred Mutua has urged former VicePresident Kalonzo Musyoka to put his Wiper Democratic Party house in order. Dr Mutua, who was open- FILE | NATION Governor Alfred Mutua with children at the recreational park. ing the second session of the Machakos County Assembly, said too much infighting among Wiper leaders in Ukambani, the stronghold of the party, does not put it image any good. “From Kitui to Makueni and Machakos counties, we are reading negative stories associated with elected Wiper leaders. The question is why are we having this infighting?” the governor asked. Move with speed Dr Mutua said negative politics is not only a problem in Kenya but is also responsible for retarding growth in Africa. “My appeal to Mr Musyoka is to move with speed to gal- vanise the Kamba community; the time has come for us leaders to work together by joining forces. I dream, and hope, as many of our people do, for the day all our leaders — Kalonzo Musyoka, Charity Ngilu, governors, senators, MPs, county assembly leaders and church leaders –– will join hands and work together for the good of our people,” he said. Dr Mutua later told the Sun- day Nation that development cannot be achieved without unity. ANALYSIS OF THE HAGUE TRIAL | Prosecution says biased Kenyan government not cooperating Uhuru’s wealth a stone in ICC prosecutor’s shoe Attorney-General, who holds he must stay neutral in the cases, is on the spot to compel President to release his financial records BY SUNDAY NATION REPORTER email@example.com national Criminal Court, the trial chamber in the Uhuru Kenyatta case is expected to make a formal ruling following an application by the prosecutor for a finding that Kenya has failed to cooperate with the court in relation to the cases facing the Kenyan president and his deputy William Ruto. Oral arguments were heard on Friday during a status conference before the trial court convened to hear the allegations of non-cooperation against Kenya. Attorney-General Githu Muigai I argued that co-operation with the court is subject to Kenyan law and that the Kenya government has no power to compel the production of financial records for Mr Kenyatta without an order issued by a competent Kenyan court. The AG argued that it was his duty to keep a distance from both the defence and the prosecution in the Kenyatta case, and that for this reason he had not discussed with the President his position regarding the requested information. According to Mr Muigai, it was up to the ICC to make an application before the Kenyan national courts. But the common legal rep- resentative for victims Fergal Gaynor strongly disagreed with the AG’s position on Kenyan law, arguing that Mr Muigai had a duty to assist the court, which he had neglected, and instead had chosen to defend the accused. In the relevant filing, the pros- ecutor moved the court to make a formal finding that Kenya has failed to cooperate with the court n a situation that exemplifies the strained relationship between Kenya and the Inter- and, therefore, refer the matter to the Assembly of States Parties. Under the Rome Statute, one of the fundamental obligations of states that are parties to the ICC is to cooperate with the court in all aspects of the trial of cases before the court. According to the prosecu- tor, Kenya has failed to comply with her April 2012 request to produce financial and other records of Mr Kenyatta that are relevant to critical issues in this case and may shed light on the scope of the accused’s conduct, including the allegation that he financed the crimes with which he is charged. The prosecutor alleges that for 19 months, her “repeated requests have been met with obfuscation and intransigence” and seeks a finding that Kenya has failed to comply with the court. The AG, on behalf of the gov- ernment, denied the allegation as to non-cooperation and asserted that the Kenya government has cooperated with the court at all material times and asserted bad faith on the part of the prosecutor for making these allegations, which are baseless. A difficult case A period of sustained difficul- ties has characterised the Kenyan cases before the ICC since Mr Kenyatta and Mr Ruto assumed office as president and deputy president. Throughout last year, the Kenya government conducted a high-profile campaign, particularly at the African Union and also before the United Nations, against the trial of the two. As part of the campaign Kenya influenced the AU to convene an extraordinary summit at which it was resolved that no African head of state should be tried while in office. Also, Kenya, with the support of the AU, renewed its request, which had previously been rejected, to the UN Security Council for a deferral of the trial of the cases for a year, as provided for under international community has unreasonably stood in the way of Kenya’s attempts to deal with the post-election violence in its own way, unmindful of the fact that the prosecutions are a threat to the fragile peace that exists in the country. The prosecutor has her own complaints against the Kenyan state, including that of insufficient cooperation, that Kenya has politicised the trials with an intent to defeat justice, and witness tampering. Early in the year, the Kenyatta case was rocked by a request from the prosecutor for an indefinite suspension of the trial following the withdrawal of a key witness which rendered the case challenging to prosecute. As a result the Kenyatta case is viewed as weak and as susceptible to failure. The Ruto case has also had its share of witness withdrawals, with the reported disappearance of a witness last week which also brings complications to the trial. Backlash against ICC The request for a deferral of FILE | NATION AG Githu Muigai is accused by the ICC prosection of protecting defendants President Kenyatta and his deputy William Ruto. Article 16 of the Rome Statute. While the Security Council rejected Kenya’s request a second time, the political pressure that Kenya had generated directly galvanised the international community behind a decision to change the Rules of Evidence and Procedure applicable to trials before the ICC so as to relax the requirement for personal presence for Mr Kenyatta and Mr Ruto during trial. Mr Ruto has since been allowed to stay away from the better part of the proceedings. The change of rules was expected to pacify the AU and bring an end to Kenya’s many complaints against the ICC, including claims that the cases are politically motivated, and the result of a scheme to ensure regime change in Kenya; allegations that the court procured witnesses through bribery and false testimony; and that the ICC LAWS What does the law say? Article 87 of the statute provides that: “where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.” the Kenyatta case had led some to suggest that the Security Council should have given the one year deferral that Kenya had sought, since this in effect is what the prosecution also now wants. This would have mollified both Kenya and the AU, while affording the prosecutor the time she now craves to get ready, and would have undercut the ongoing backlash against the ICC. While the cases before the ICC have run into considerable trouble lately, they still represent the best chance for the prosecution of alleged perpetrators of the postelection violence. Local justice mechanisms, which were recommended in the place of the ICC, failed to materialise, and whereas the government has maintained that it is committed to accountability, there are no meaningful national trials in place. If, as now looks increasingly possible, the ICC cases collapse, this will likely be viewed as a monumental tragedy for the victims of the post-election violence. Last week, the Judicial Service Commission convened a meeting in Naivasha to discuss the possibility of national trials for the post-election violence. During the meeting the Director of Public Prosecutions, Keriako Tobiko, announced that his office had no evidence to sustain the trial of 4,000 cases of the post-election violence that he had been investigating. “When you look at the poli- tics of Ukambani today which is viewed as a Wiper party stronghold,” Dr Mutua said, “it is viewed as a party at war with itself”. The governor said that Machakos will be the next frontier in the transformation of politics and accelerated development. He said Machakos County Assembly members had set a good example by focusing on development rather than politicking.
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