ICC ruling today on Bashir, what it means for Kenya

A ruling which might have a precedent effect on the Kenyan post election case awaiting determination at the Hague has just been delivered.

The ruling which was delivered today by the appeals chamber of the ICC reversed a decision by the pre-trial chamber of the court last year which disqualified the charge of genocide on Sudan’s president Omar Bashir.

It is the same pre-trial chamber which is currently looking into the merits and demerits of the Kenyan case as presented by prosecutor Moreno Ocampo and reinforced by victims petitons.

The unanimous decision by the appeals chamber today directed the pre-trial chamber to decide afresh whether the arrest warrant issued against Bashir last year should be extended to cover the crime of genocide.

Sitting on March 4th last year, the chamber found that material provided by Ocampo supporting his application for a warrant of arrest against Bashir was defective to the extent of covering genocide crime.

The judges said the Ocampo failed to provide “reasonable grounds” to believe that Bashir had the specific intent to destroy the Fur, Masalit and Zaghawa groups of people in Darfur region.

As a result of this finding, the crime of genocide which Ocampo hoped to nail Bashir on, was not included in the warrant of arrest that was issued a little later on by the court.

Undeterred however, Ocampo moved to the appeals chamber in July 6th to appeal the decision.
He argued that the pre trial chamber erred in requiring that the existence of reasonable grounds to believe that the crime was committed “must be the only reasonable conclusion from the evidence presented by the prosecutor.”

Ocampo has supplied similar material on Kenyan case to the pre trial chamber where he hopes to pursue crimes of murder, rape and other forms of sexual violence, deportation or forcible transfer of populations and other inhumane acts which occurred in Kenya.

He bases his case on a vast number of national and international reports documenting the Kenyan post election violence and analyzed by his office.

Among them is the Waki Report, Kenya National Commission on Human Rights and Office of High Commissioner for Human Rights.

Others are UNICEF, UNIFEM, UNFPA, FIDA-K, Human Rights Watch, International Crisis Group, Centre for Rights, Education and Awareness and Christian Children’s Fund and UN Special Rapporteur on extra-judicial killings.

The ruling on Bashir is important to the Kenyan case currently on the table. What it means therefore is that the decision on whether to admit the case or not- and which is likely to be delivered any time now, can actually be challenged.

It means the word of the pre-trial chamber is not final and is open to further litigation. This particular appeal has lasted almost a year now if you consider the time Ocampo placed it.

This is because ICC processes are water-tight and quite meticulous. This is an essential aspect of judicial processes.

With the high stakes involved in the Kenyan case, you can be sure whatever decision the pre trial chamber arrives at will definitely be challenged. Already, various groups- including American scholars have petitioned the chamber not to admit the case.

The long and short of it is that justice for post election violence will be delayed a lot more and all the while, 2012 approaches. We were warned; ICC process is long and torturous, we didn’t listen.

So who will now bail out the victims? Where is justice to be found under the sun for the post election victims? Can there be justice for these people through any process, local or international? What is justice?

Ends…………/.