Post by OtishOtish on Dec 8, 2012 20:33:18 GMT 3
Raila has beem making some irresponsible statements, to the effect that these cases can be "brought back home" and that he will work towards that end. It is unfortunate that quite a few seem to be taking these seriously, i.e. taking them for more that vote-getters aimed at gullible Kenyans.
Raila has not made clear why he thinks he would succeed where the entire GoK machinery and its fancy QCs failed. It is important here to recall in its Admissibility challenge, GoK told lie after lie and made empty promise after empty promise. For example, the ICC was given about 4000 names and told that investigations were ongoing and prosecutions would start in Sep 2011. A couple of months ago, Tobiko announced that not enough evidence had been found to try any of those people. Would the ICC swallow any more stories, even it does not take into account that, far from investigating and prosecuting, GoK has been acting to hinder the process?
But none of that is actually as important as the very simple fact that the cases cannot be "brought back home" without a second Admissiblity challenge, and GoK will not mount another Admissibility challenge---for the very simple reason that it would absolutely not succeed. A quick look at the Rome Statute will show why another Admissibility challenge will absolutely not succeed.
First: Whereas a first Admissiblity challenge is a matter of right, a second one is not. A second one is constrained both in terms of time and on the basis on which it can be made. What's more, it would require the leave of the court to make such a challenge.
Second: There is no way the court would grant leave for another challenge. Here is what the law says:
Article 19(4): The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c).[/i]
We can have a debate on what "exceptional circumstances" Raila, or GoK, or anyone else might have in mind; but with trials already scheduled to start in a few months, attention should be paid to the last sentence in 19(4).
Article 17(1)(c): The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.[/i]
In other words, it is not enough to merely claim that they will be tried back in Kenya. (And, by the way, some fake "white-washing" trial would not fool the ICC judges or anyone else.)
Raila is a politcian. As part of his "political DNA", he lusts after power, at the highest possible levels, as all politicians do. And, of course, his supporters, fulfilling their "job description" as supporters, think he is the person most deserving of the most power (as do Uhuru's supporters of Uhuru, Kenneth's supporters of Kenneth, etc.). Nothing fundamentally wrong with that. But the ICC process has, unfortunately, been politicized enough and more than enough and then some. At this stage, gratuitous "additions" are neither necessary nor helpful.
To the extent that anyone still believes that the cases can be "brought back home", the key question to answer is "how exactly?". Anyone who does not have or will not give even the outlines of an answer should stay off the subject. (Yes, that's for Raila.)
SPECIAL FOR REPORTER911: I can see you reaching for the keyboard. STOP! Take 10 deep breaths. Read (carefully) what I have written. THINK! Take another 10 deep breaths. NOW you may type.
Raila has not made clear why he thinks he would succeed where the entire GoK machinery and its fancy QCs failed. It is important here to recall in its Admissibility challenge, GoK told lie after lie and made empty promise after empty promise. For example, the ICC was given about 4000 names and told that investigations were ongoing and prosecutions would start in Sep 2011. A couple of months ago, Tobiko announced that not enough evidence had been found to try any of those people. Would the ICC swallow any more stories, even it does not take into account that, far from investigating and prosecuting, GoK has been acting to hinder the process?
But none of that is actually as important as the very simple fact that the cases cannot be "brought back home" without a second Admissiblity challenge, and GoK will not mount another Admissibility challenge---for the very simple reason that it would absolutely not succeed. A quick look at the Rome Statute will show why another Admissibility challenge will absolutely not succeed.
First: Whereas a first Admissiblity challenge is a matter of right, a second one is not. A second one is constrained both in terms of time and on the basis on which it can be made. What's more, it would require the leave of the court to make such a challenge.
Second: There is no way the court would grant leave for another challenge. Here is what the law says:
Article 19(4): The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c).[/i]
We can have a debate on what "exceptional circumstances" Raila, or GoK, or anyone else might have in mind; but with trials already scheduled to start in a few months, attention should be paid to the last sentence in 19(4).
Article 17(1)(c): The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.[/i]
In other words, it is not enough to merely claim that they will be tried back in Kenya. (And, by the way, some fake "white-washing" trial would not fool the ICC judges or anyone else.)
Raila is a politcian. As part of his "political DNA", he lusts after power, at the highest possible levels, as all politicians do. And, of course, his supporters, fulfilling their "job description" as supporters, think he is the person most deserving of the most power (as do Uhuru's supporters of Uhuru, Kenneth's supporters of Kenneth, etc.). Nothing fundamentally wrong with that. But the ICC process has, unfortunately, been politicized enough and more than enough and then some. At this stage, gratuitous "additions" are neither necessary nor helpful.
To the extent that anyone still believes that the cases can be "brought back home", the key question to answer is "how exactly?". Anyone who does not have or will not give even the outlines of an answer should stay off the subject. (Yes, that's for Raila.)
SPECIAL FOR REPORTER911: I can see you reaching for the keyboard. STOP! Take 10 deep breaths. Read (carefully) what I have written. THINK! Take another 10 deep breaths. NOW you may type.