Francis Mureithi and Nzau Musau

3 September 2010

Nairobi — THE International Criminal Court has 396 victims and witnesses ready to testify against leaders behind the 2008 post-election violence.

The ICC Registrar Silvana Arbia yesterday said 320 of the victims and witnesses are individuals while 76 are registered as "communities".

Arbia is in Nairobi to secure the government's signature for an operational and legal framework that will allow the ICC to set up an office in Kenya.

Arbia further revealed the court has already enlisted a good number of the victims and witnesses in the ICC witness protection programme.

She said ICC will do everything in its power to protect victims and witnesses willing to participate in the trial of key suspects.

The Star learnt yesterday that another high-powered team of investigators will be in Kenya in a few days to conclude further investigations before the Chief Prosecutor Luis-Moreno Ocampo returns in October.

"Ocampo's visit will be a formality. All he will do is to come tell the country that he is ready to go to court to ask for the issuance of arrest warrants," said a source familiar with the ongoing process.

Ocampo, according to multiple sources, is likely to ask for sealed warrants for fear that open warrants may make it difficult for the suspects to be arrested.

The government is today expected to sign the agreement allowing ICC to set up base in Kenya. The agreement will be signed between Arbia and the Cabinet sub-committee which includes Security Minister George Saitoti, Lands Minister James Orengo, Fisheries' Amason Kingi and Foreign Affairs' Moses Wetangula.

Yesterday Arbia said for security reasons ICC will permit victims and witnesses who are at great risk not to appear in court but to be represented by either local or international lawyers with legal fees being settled by the International Court.

"I will never ask a witness to testify if there is risk," the registrar told journalists during a training for media practitioners at Nairobi's I&M Building.

"The court is ready to offer whatever is there to be offered even with its limited resources," she said.

"We are already protecting witnesses," added Arbia but she did not reveal the actual number of victims and witnesses who have already been enlisted in the courts witness protection programme.

Last month, the Star exclusively reported that ICC had flown at least eight witnesses out of Kenya.

Four are constituents (and one is a next-door neighbour) of a powerful Cabinet minister who appears likely to be among the first post-election violence suspects to face charges in The Hague.

According to multiple sources, the ICC is likely to charge two ministers, a sitting MP, a former MP and a senior police officer.

The six witnesses were taken to a neighbouring country in mid August from where they and their families were flown to unknown destinations.

At the beginning of August, ICC flew out two witnesses and their families from Jomo Kenyatta International Airport in Nairobi. All the witnesses will be relocated in different cities in Europe.

The minister's next-door neighbour was flown out accompanied by his two wives and their six children.

Investigations into the poll violence have zeroed in on three areas including the Kiambaa Church arson in Eldoret, revenge attacks in Naivasha, and police killings in Eldoret, Kisumu and Nairobi.

The eight witnesses have incriminating evidence against the powerful minister who may be charged with helping to organise the violence.

A Western country has offered to give asylum and provide protection to 30 possible witnesses and up to 70 family members.

An official with an NGO working in the Rift Valley has also been flown out of Kenya with his family after his life was threatened.

Ocampo has promised to complete his investigations by the end of the year. He is expected to present the evidence to the pre-trial chamber in early 2011 and request the court to issue warrants of arrest for the key suspects.

In March this year and following a request for additional information, Ocampo named 20 people whom he said held the most responsibility for the violence which swept parts of the country following the disputed December 2007 presidential election.

Ocampo said that while the list he had received from Chief Mediator Kofi Annan contained nearly 20 names, he was unlikely to prosecute all of them. He said his intention was to prosecute five or six people who had the greatest responsibility and use them to set an example for the future.

Yesterday Arbia said while Ocampo's duty is to prosecute, the primary role of the registrar's office is to protect victims and witnesses. She said ICC will enroll physiologists to assist the victims and witnesses where needed.

"Victims may be traumatised once they are told to testify. This is the big challenge for ICC," said the registrar. She explained that ICC does not expect the witnesses to incur any cost for participating in the trials.

"Of course most of these victims are peasants," she said adding that it is upon the court to determine the legal fees to be paid to lawyers and other experts who will be enlisted to represent the victims.

Arbia said ICC was also facing the challenge of winning the trust and confidence of victims and witnesses. "It is a reality which we have to say is difficult to manage and make it happen," said Arbia.

In case the warrants of arrest against key suspects are issued, Arbia said it is upon the Kenyan government, as a signatory of the Rome Statute, to apprehend the suspects and hand them over to The Hague.

Arbia said ICC does not have powers to enforce the decisions of the judges and it has to rely on the member states.

Without directly criticising the government for not arresting Sudanese President Omar al Bashir when he visited Nairobi last week, the registrar said the State should respect all international laws especially the ones it has ratified.

Yesterday reports emerged that a joint offensive is afoot at the Hague and in Kenya to cite Attorney General Amos Wako and Ministers Moses Wetangula and George Saitoti for contempt of International Criminal Court.

At the Hague, Imenti Central MP Gitobu Imanyara is planning to file an application for the citation of the three senior government officials while here in Kenya a lobby is planning a legal suit against the three over failure to arrest Bashir.

Gitobu's application will be made next week, according to sources close to the MP. The legislator is currently in Australia on official parliamentary business.

International Centre for Policy and Conflict is the lobby behind the local suit which is being prepared. According to the group's executive director Ndung'u Wainaina, the legal action is premised on gross violations to the constitution of Kenya, Rome State and International Crimes Act of 2008.

"They aided, abetted and facilitated a fugitive wanted by the International Criminal Court to escape justice in contravention of the International Crimes Act of 2008 which domesticates the Rome Statute," Wainaina said yesterday.