HTTP 200 OK
Allow: GET, PUT, PATCH, DELETE, HEAD, OPTIONS
Content-Type: application/json
Vary: Accept
{
"id": 194967,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/194967/?format=api",
"text_counter": 79,
"type": "speech",
"speaker_name": "Mr. Wako",
"speaker_title": "The Attorney-General",
"speaker": {
"id": 208,
"legal_name": "Sylvester Wakoli Bifwoli",
"slug": "wakoli-bifwoli"
},
"content": "Mr. Deputy Speaker, Sir, Clause 6 then states that the crimes for which one may be taken to stand trial before the ICC are only in the cases of genocide, crimes against humanity or war crimes. Let me also inform the National Assembly that, very soon, there will be a fourth category called the crime of aggression. But the definition of what amounts to aggression is currently still being debated at the UN. This is very, very carefully defined: Aggression could unwittingly be the exercise of a people to exercise their fundamental right to self-determination, the war of liberation and other things. So, it has to be defined in a manner as to exclude the legitimate uses of force. Now, this crime has been properly defined under the statute. Since this is the crux of the matter, I would just try to read the definitions. If hon. Members have the Bill, you will find those definitions at page 354. The crime of genocide, for example, is defined under Article 6. It states:- \"For the purpose of this Statute, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group - in other words you do not want the group's population to multiply and increase. (e) Forcibly transferring children of the group to another group\". That is what amounts to genocide. Article 7 of the Statute at page 355 then defines crimes against humanity. It states:- \"For the purpose of this Statute, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: May 7, 2008 PARLIAMENTARY DEBATES 909 (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (i) enforced disappearance of persons; (j) The crime of apartheid.\" That amounts to crimes against humanity. Then, of course, we have war crimes. Mr. Deputy Speaker, Sir, I think what is common in all these definitions is that if a particular ethnic, racial, religious group or a section of a community is under attack, then you stand very closely in danger of committing the international crime envisaged under the Rome Statute. The attack should not just be an isolated matter. It should be very systematic and widespread against that particular community. So, those are the crimes which are envisaged to be covered under this Act. In the proceedings before the International Criminal Tribunal, there are important safeguards to ensure that frivolous cases are not taken and heard before the court. Therefore, there is what we call the principal of admissibility. Before any case can be heard by this International Criminal Court (ICC), it must decide on the issue of admissibility. The court will declare a particular claim inadmissible where, for example, the case is being investigated or prosecuted by a State which has jurisdiction over it. So, if the State comes up and says, \"No, this case should not come before us because we are already doing and undertaking our State responsibility to carry out investigations and prosecutions\", then it will not be heard by the ICC. Mr. Deputy Speaker, Sir, so, people should not be in a hurry whenever something happens, to say that they are taking matters to the ICC. Instead, whenever something happens here, they should invoke the institutions which are in this country to deal with that problem first. The matter can only be heard before the ICC if you can demonstrate that there is lack of good faith in implementing this within the national State, that is, bad faith or reluctance to investigate or lack of political will to prosecute. If you can demonstrate that, then the case before the Hague Court may be admissible. It will also be declared inadmissible where the person concerned has been tried for conduct which is a subject of the complaint. In other words, if the State itself has already began that exercise and is already prosecuting people arising out of that, then the State will be left to continue that process rather than engaging the International Criminal Court. The other ground on which a claim may be declared inadmissible by the Court is if the case is not of sufficient gravity to justify the hearing by the ICC. As I stated earlier, murders and killings go on, but they really must, first of all, be targeted against a group. Secondly, they must be very widespread and very consistent with determination of almost saying, \"We must eliminate this group\". That is when it can attract the gravity that is required for the matter to be heard by the ICC. So, that provides some safeguard for having frivolous cases not heard by the ICC. Mr. Deputy Speaker, Sir, the other safeguard is the procedure itself. Just like in the national States, the process, for example, in Kenya, under Section 26(3) of the Constitution, directs the police to investigate a matter. However, at that international level, the prosecutor can only initiate 910 PARLIAMENTARY DEBATES May 7, 2008 such investigations not on his own. He must, first of all, analyze the seriousness of the information that he has received and may in that analysis call for further information from the complainant; that is, the person who has given that information. In calling for further information on that issue, he may also invoke and call for supplemental information from Non-Governmental Organisations (NGOs), Inter-governmental Organisations and the United Nations. For example, if a matter happens in country X, the United Nations Human Rights Council (UNHRC) is already investigating those matters. Therefore, if the same matters go before the ICC, the prosecutor, in assembling the information to enable him decide whether the ICC should take up the matter, can call for such information as may be within, say, the UNHRC, a special rapporteur on a particular subject and so on. Mr. Deputy Speaker, Sir, if the prosecutor then concludes that there is a reasonable basis for him to initiate proper investigations, he will do so. He will not, like the Attorney-General in Kenya, just order the Police Commissioner to investigate a matter. He has, first of all, to go to a plea trial chamber of the court, where he will give all the information he has collected to a panel of three judges for them to examine whether there is enough evidence to initiate proper investigations. If the plea trial chamber, upon examination of the request, and the supporting materials, agrees with the prosecutor that there is a reasonable basis to proceed with the investigations, the plea trial chamber will then authorise the prosecutor to initiate proper investigations. But, again, there is another safeguard. Before that happens, the persons against whom it is alleged those matters were done, now have the right to go before the plea trial chamber and argue that this is a matter which should be investigated properly by the court and, thereafter, be prosecuted. Mr. Deputy Speaker, Sir, if a particular violation, for example, has happened in country X and the prosecutor forms the opinion that there is a reasonable basis to initiate investigations, and a plea trial chamber agrees with the prosecutor, then the persons affected by that decision will be informed and given the opportunity to challenge the issuance of authority for proper investigations into that matter. In such a case, for example, country X can come up and say: \"Although it has happened, it is not proper for this court to do so, because the claim is inadmissible. It is inadmissible because we are already dealing with the matter. We are investigating and prosecuting.\" If the court agrees with country X, that will be the end of the matter. If the court does not agree with the state of country X or the person affected, that is when proper investigations are carried out by the International Criminal Court (ICC) and, thereafter, the prosecution ensues. So, the offences contemplated under the Rome Statute are serious offences, which attract the attention of the international community. However, there are safeguards to prevent abuse. There are safeguards to stop frivolous cases from going up to the international level. At the end of the day, it is the primary responsibility of the State to investigate and prosecute. Mr. Deputy Speaker, Sir, Kenya stands to benefit a lot from domesticating this Bill because, really, as a State party to the ICC we have the right to suggest appointments of our own professionals to go and man the registry of the court, or become judges of the ICC, et cetera . The ICC has 18 judges, who must be persons of high moral character, impartiality and integrity. For example, we have a similar court trying suspects of the Rwanda Genocide in Arusha, Tanzania. We have many Kenyan nationals who are already working there as prosecutors and defenders. In fact, the first Registrar of the ad hoc ICC Tribunal on the Rwanda Genocide, the late Dr. Adrenico Adede, was a Kenyan. He was a renowned international jurist. I believe he could become the first Kenyan to be a judge of the ICJ. So, from that point of view, we are already benefiting. Mr. Deputy Speaker, Sir, on the issue of ratification of this international law, as I said, as a State party, we are already committed. We have ratified and, therefore, it is our responsibility to May 7, 2008 PARLIAMENTARY DEBATES 911 ensure that it has the force of law in Kenya. Kenya is living up to its obligations under the Rome Statute. In fact, we have already began receiving requests for assistance from the ICC. For example, currently, we have received a request from the ICC to temporarily play host to refugee witnesses from Darfur, to come and stay at Kakuma Refugee Camp, because one of the cases before the ICC involves Sudan. Mr. Deputy Speaker, Sir, there are potential witnesses from Darfur. We have now received a request for those witnesses to come and stay in Kakuma as they await to go to the Hague to give evidence. So, Kenya is already playing its part. From what I have stated, I hope that the National Assembly of Kenya will also play its part in passing the International Crimes Bill. Mr. Deputy Speaker, Sir, with those few remarks, I beg to move and call upon the Minister for Justice, National Cohesion and Constitutional Affairs, Ms. Martha Wangari Karua, to second the Bill."
}