Nairobi Star (Nairobi)

Nairobi — THE International Criminal Court is expected to request sealed warrants of arrest for the post-election violence suspects, the Star has established.

The decision to ask for sealed warrants follows growing indications that the Kenya Government is unwilling to cooperate with the ICC.

Multiple sources who understand the ICC processes, rules and procedures intimated to the Star yesterday that ICC Chief Prosecutor Luis Moreno Ocampo will seek the sealed warrants to ensure the suspects are brought to justice.

This follows the government’s failure to arrest Sudan President Omar al Bashir, who is wanted by the court for genocide and war crimes in Darfur, when he visited Nairobi on Friday.

Sealed indictments and warrants are issued in strict confidentiality and on the basis that the persons being sought might flee if public warrants or indictments are offered.

“It is an option the prosecutor might opt to pursue knowing that Kenya appears bent on subverting the course of justice not only for its leaders but also neighbouring countries,” the source said.

The ICC pre-trial chamber authorised investigations earlier this year.

Formal investigations are ongoing and after this the prosecutor will go back to the pre-trial chamber which will either confirm or turn down the indictments.

An indictment is basically a detailed charge sheet laying out the offences and disclosing in great detail the circumstances of the crime.

“Sealed indictments are issued after the Prosecutor completes investigations and gets them confirmed by the Pre-Trial Chamber. These indictments are not open to public scrutiny,” said a lawyer accredited to the ICC.

“They are usually sealed to aid investigation and prevent the flight of suspects and also to protect witnesses and in cases where there is danger of escalating insecurity – all of this at the discretion of the prosecutor.” besides the sealed arrest warrants, the prosecutor can issue summonses of voluntary appearance before the court if the prosecutor reasonably believes that the suspect will indeed show up at the court.

This cannot however be relied upon in the Kenyan case especially with growing indications that the government and the suspects might not cooperate with the court.

“Even if they issued the sealed warrants, they might have to write silently to all state parties alerting them of such and requiring them to arrest the suspects,” International Centre for Policy and Conflict’s Ndung’u Wainaina explained yesterday.

According to the court, arrest warrants are meant to ensure that a person appears at trial, that the person does not endanger or obstruct the investigations and, when necessary, to prevent a person from continuing to perpetrate the alleged crime.

According to a factsheet at the Coalition for ICC website, an arrest warrant can be applied for any time the prosecutor initiates investigations.

This means that Ocampo can apply for a warrant of arrest against the Kenyan suspects if he deems it appropriate. Once such warrants are issued, the registrar or the prosecutor will be required to make specific requests for arrest.

Wainaina said seeking a sealed warrant of arrest would need to be done if there was compelling evidence that the course of justice would be frustrated by a public warrant.

“All indications point to the direction of frustrating the court and l won’t be surprised if this happens,” Wainaina said.

Lawrence Mute, a commissioner at the Kenya National Commission on Human Rights, said it was would be unrealistic for the ICC to expect reasonable cooperation from the government.

“In a few months time, we hope ICC will indict some people over the post-election violence. At a practical level, will Kenya cooperate by handing over suspects? I think not,” he said.

Many countries apart from African Union members are ready and willing to cooperate with the court. Others like the US which are not signatories to the Rome Statute have ad hoc arrangements of cooperating with the court.

President Kibaki and Prime Minister Raila Odinga last year promised Ocampo that the government would give him all the cooperation required to investigate and arrest suspects of the 2007-08 violence.

Yesterday Deputy Prime Minister and Minister for Local government Musalia Mudavadi said Kenya cannot reverse what had already happened and there was now need to move on as a nation.

“What the international community will be looking for is a clear re-affirmation that the Kenya government is committed to the ICC and the Rome Statutes and that’s the only way we can do damage control because his (Bashir’s) invitation kind of negated the commitment of Kenya to the ICC process,” the Deputy Prime Minister said.

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if kenya has to move forward as its shown that it is capable of doing sothe players which unfortunately does not include a former president knownto all as the #1 instigator on ethnic violence should be brought to bearthe brunt of ICC and yes KENYA is a signatory and has to honor itsinternational commitments none should be spared the sooner they areapprehended the better

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Tags: chief prosecutor, darfur, indictments

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