ICC prosecutor Luis Moreno Ocampo’s planned meeting with Kenyan intellectuals in the United States has sparked off bouts of anxiety for the Ocampo Six. The latest worries come on the back of the uncertainity about the decision of the pre-trial chambers whether their cases will be approved for full hearing or dismissed.
Ocampo will on Friday meet Kenyans in New York to discuss, among other issues, next year’s eagerly awaited General Election. The scheduled two-hour forum has been arranged by the office of the ICC prosecutor. He will meet Prof Makau Mutua, a Kenyan legal scholar teaching at Buffalo University in New York and members of the New York City Bar African Affairs Committee and the Vance Centre of the City Bar.
Ocampo and his successor Fatou Bensuda are due to debate the ICC process and its impact on next year’s election. The six suspects are: Finance Minister Uhuru Kenyatta, MP William Ruto, Cabinet Secretary Francis Muthaura, former top cop Hussein Ali, former Cabinet Minister Henry Kosgei and journalist Francis Sang’.
Observers believe the organisers already have an idea about the outcome of the decision by the pre-trial chamber. The Star has established the decision may not be made public before Christmas as is widely thought. Ocampo is believed to have been involved in planning of the meeting. “We are pleased to invite you to participate in a discussion with other members of the Kenyan Diaspora from 5 pm to 7 pm, on Friday 16 December 2011,” part of the invite circulated to members of the Kenya Diaspora and obtained by the Star reads.
Although the 60 day period within which the decision must be made for the two cases – one involving Ruto and the other involving Kenyatta – started on November 21, it is unlikely the decision will be made before Christmas.
Court spokesman Fadi El Abdalla yesterday told said the decision period falls at any day within the 60 day period which started in November 21 and ends on January 21, 2012. This period which also includes the Christmas period is the period of the second case involving Uhuru Kenyatta. “The Judges will issue their decisions within 60 days from the date given for the defence in the second Kenyan case to present written submissions. So, the decision is within 60 days starting from 21 November,” Abdalla said. The announcement by presiding judge of the pre-trial chamber Ekaterina Trendafilova that the decision on the two cases will be issued at the same time narrows the chances of it coming before Christmas.
The decision varied the 60 day period for the first case which started on October 24 and would have ended on December 24 so that it would now be made in the period of the second case. “Consequently, the 60-day time limit, within which the decision under article 61(7) of the Statute is to be rendered in Case 1, shall be varied to the effect that the decision in Case 1 will be issued at the same time as the article 61(7) decision in Case 2,” Trendafilova said.
Although the period of the second case is between November 21 and January 21, it would have been illogical for the judges to vary the 60 day period of the first case if they were going to give the joint decision before the Christmas. If that were the case, the judges would have only announced that they would issue the two decisions at the same time without varying any time limit for either of the two cases. It follows that the decision should be expected within the 60 period of the second case after December 24 and before January 21.
International law scholar Dr Godfrey Musila concurs: “Its almost authoritative to say the decision will be issued a few days into the January 21st deadline. In approximating when the time the decision will be made, you can only rely on the period of the second case and mind the fact that a 60 period for the ICC to make a decision of this magnitude is ambitious. The history of past such decisions attests to this.”
Ordinarily the two decisions would have come at their different times had Trendafilova not concluded that it was in the best interest of Kenyans that they be issued at the same time. Victims lawyer for the second case Moses Anyah had requested for a decision at the same time for security reasons.
“The Registrar has drawn the attention of the Single Judge to the fact that if the article 61(7) decisions in the two cases are issued separately, and whatever is decided in the first case, it is likely that a rise in tension may occur, and speculations or potentially heated public debate might take place with an expectation of the same result in the second case.
“Thus, according to the Registrar, issuing the decisions simultaneously could make a significant difference on how the Kenyan population reacts to the decisions,” Trendafilova said. The decision will either confirm or not confirm the two cases against six Kenyans. It may also confirm some of the charges against some of the suspects, amend the charges or ask the prosecutor to provide further evidence.
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