Kilifi DC was better. I liked him.

Am on the side of justice, and unfortunately, neither this court nor the government of the day seems keen to pursue.

being a lawyer, he was very calm...despite the prosecution asking some questions intentionally to make him loose temper.... one son of jomo should have made notes, otherwise....ngonja akalie hiyo kiti.

as i said earlier, the judges seem a long way into it and they have already made a decision. these witnesses are not necessary for now.

...ati Thuita is only 48 years???? Why does he look kedo sixte !!

I think you said that because of the white/grey hair. Isn't it?

But, even if the culprits are caught, prosecuted and even jailed, the issues surrounding the PEV will never end, and will always come back to haunt us every time.

..,Anya: Mr. Mwangi what would u say if I submit to you that Muthaura planned the Naivaisha revenge attack. Mwangi: I will say its absurd,. Anya: And why would you say that?., Mwangi: Becoz I was a member of NSAC and we never planned such henious attacks., Anya: Very well. And were you always with Mr. Muthaura in all the meetings he attended in the month of Jan 2008,. Mwangi: Yes., Anya: Are you ...telling this court that you were with Muthaura 24/7, and you will know all the meetings he had with Mr. Michuki, Kenyatta & Gen. Ali?.., Mwangi: (now, fumbling) Your honour I wont know coz I wasnt with him 24/7., Anya: So, if I submit to you that Muthaura planned the Naivaisha attacks without your knowledge, would i be wrong.., Mwangi: I would say its absurd., Anya: Its absurd, but is it impossible?., Mwangi: Its not impossible.., Anya: Your honours that will be all

He has the grey hair syndrome.

By THUITA MWANGI
Permanent Secretary
Kenya's Ministry of Foreign Affairs

November 3 2009

Africa must prove to the world that she is ready, willing and able to end impunity
On the eve of the visit to Kenya by International Criminal Court Prosecutor Luis Moreno-Ocampo, the debate on bringing to justice perpetrators of post-election violence has failed to address key questions critical to understanding the place and proper role, if any, of the Court in the Kenyan situation.

The controversies that surround issues of jurisdiction of the ICC over nationals of sovereign states, both here in Kenya and in neighbouring Sudan, are nothing new.

And as this debate, which has dominated front pages of the Kenyan media rages, an important milestone event, whose outcome had a special resonance to efforts by the African Union to end the culture of impunity, was taking place in Abuja, Nigeria.

Last week a Special Summit of the Peace and Security Council of the African Union convened to consider and adopt the recommendation of the AU High Level Panel on Darfur. It looked at how best to effectively and comprehensively address the issues of accountability and combating impunity, on the one hand, and peace, healing and reconciliation on the other.

Sovereign right

In examining the Kenya and Darfur reports, many striking parallels cannot escape attention. While one might argue that circumstances that led to international interventions in the two countries are different, the fundamentals, both in the conclusions and recommendations are more or less the same.

Both initiatives are led by Panels of Eminent African Personalities. Darfur was led by former South African President Thabo Mbeki, while Kenya’s post-election crisis was headed by former UN Secretary-General Kofi Annan. They both derived their mandates from the African Union.

Both reports seek to draw a road map on how best the inter-related issues of peace, justice, reconciliation and healing could be addressed.

However, on the key question of the role of the ICC, there is a major divergence between the Mbeki and Annan approaches. In its conclusion on issue of justice and impunity, the Mbeki report completely excludes the possibility of resort to the International Criminal Court. In fact, it neither considers the ICC, even remotely, as an alternative nor substitute to existing internal criminal justice system in Sudan.

In the only paragraph on the International Criminal Court, the Mbeki Report concludes: “The International Criminal Court is a court of last resort, which complements the national judicial systems. It is also a court of limited capacity.

This means that even when deploying its full resources, it can only deal with a few individuals out of any situation of which it is seized. It follows that where widespread crimes have been committed, the overwhelming majority of potential criminal cases must be dealt with by the national system.”

On the other hand, the Waki-Annan Report shuts the doors tight to any local options other than a Special Tribunal that should be separate and independent from existing national criminal justice system.

It would appear that this recommendation by Waki for a Special Tribunal established by Parliament, failing which the International Criminal Court referral mechanism would automatically be triggered, was a fatal mistake. Shockingly, no one has come forward to try and cure or at least, attempt a rescue.

Even more disturbing is why the Kenya and Darfur reports should have such a wide divergence on the role of the ICC.

To fully grasp the genesis of the controversy, one has to examine the difficulties faced by the diplomatic conference in trying to overcome serious, politically sensitive and legally complex issues that even threatened to break up the conference in Rome.

At that critical moment, the pre-eminence of national courts over the International Criminal Court jurisdiction won the day and saved the statute, leading to its adoption through a vote.

Seven states voted against the Statute while 120 voted in favour and another 21 chose to abstain. The critical mass of 120, mainly developing countries was only attained after the concept of complementarity principle was finally entrenched in a manner that avoided ambiguity or vagueness on the pre-eminence of national jurisdiction over the ICC.

Among the countries that voted against the Statute in Rome were China and United States of America. China expressed concern over an overzealous prosecutor who could abuse his powers.

The United States’ principal objection was over the concept of jurisdiction and its application over non-state parties.

This illustrates how far states were willing to go to protect the sovereign right over their nationals.

The Mbeki panel on Darfur appears to have been fully aware of these political sensitivities and decided to navigate carefully to avoid offending both the word and spirit of the Statute of the ICC.

But, the casual, and one might add, arbitrary way in which the Waki Commission invokes the jurisdiction of the ICC in paragraph 5 of the recommendations contained in Chapter 13 of the Report cannot escape criticism.

Yes, we must deal with impunity firmly and resolutely.

However, the integrity of the legal reasoning behind forwarding the names to The Hague and the invitation extended to the Prosecutor to investigate and prosecute appears questionable.

The fallacy in this is the false presumption that failure to establish a Special Tribunal by Parliament or subversion of its work, can in itself trigger the International Criminal Court to supercede any other national remedy.

Apart from the fact that the available government options for prosecutions have not been exhausted, the Waki report unfortunately only presents one means of establishing a judicial modality for addressing the crimes associated with post election violence.

It follows therefore, the entry of the ICC Prosecutor is both premature and clearly inconsistent with the letter and spirit of the Statute. There is another angle to this debate that needs to be brought out.

At a time when Africa is striving for homegrown solutions for African problems; at a time when the ICC justice is being unfairly criticised as an imposition if not a plot by the West; at a time when ICC justice is perceived to be far removed from victims of crimes in whose name prosecutions are brought; at a time when her leaders are crying foul when African leaders are dragged to far away Europe for prosecution, Kenya cannot afford to miss the opportunity to demonstrate that Africa can deliver independent fair and impartial justice.

Victims of crimes

A unique opportunity presents itself for Kenya to strengthen its justice system and prove to the world that Africa is ready, willing and able to play its part in ending impunity by holding individuals responsible for crimes they commit.
As Ocampo arrives an opportunity for the Office of the Trial Prosecutor to explore areas that the International Criminal Court and Kenya can cooperate in investigations and prosecution on Kenyan soil under Kenya’s national criminal justice system as envisaged under the Statute has presented itself it should be seized.

@ User.....Where exactly is the contradiction, the prosecutor asked whether he was with Muthaura in all the meetings he attended in Jan 2008 to which Thuita replied yes. The other question was whether he was with Muthaura 24/7....those are two different statements meant to confuse the witness. I think his main purpose as a witness was to make it clear that whatever Muthaura is being charged of wasn't part of the NSAC agenda.

I must say some of the questions posed by the prosecution were a bit absurd....how do you expect the PS to state his political affiliation or that of Muthaura and why exactly did they have to bring up the issue of GEMA. I never heard any sort of reference being made to that later on. Just because some ODM Ministers said something negative about FM that should not be taken as the official position of the entire cabinet. Its very hard to ignore the fact that prosecution seem to be taking some sort of advice from people outside the Hague.