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Kenya races to transfer ICC election violence case to Africa

The conviction of Liberian President Charles Taylor sent shock waves around Africa. Kenya's President Kibaki wants to move trials of Kenyan politicians to an African, to receive 'fair' justice.

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The citizens will be facing another election later this year or early 2013, the first elections to be held under the new constitution, which was approved in 2010.

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Kibaki, who has ruled the country since 2002, is expected to retire after the election. Kenyatta, the son of Kenya’s founding President Jomo Kenyatta, and Ruto have indicated their intention to contest in the 2013 Presidential elections to succeed Kibaki, despite the ICC cases. Local media reports say powerful elites around the president favour Kenyatta to succeed him.

The success of the ICC prosecutor in getting cases approved by the ICC surprised senior politicians, especially those allied to Kibaki’s wing of government and those who support Kenyatta, according to political analysts.

Since announcement of the cases, the politicians have backed efforts delay or withdraw them from the international court. The politicians successfully passed a non-binding resolution in parliament urging the president to pull Kenya out of the Rome Statue, the 1998 pact which established the ICC court.

While Kenyan politicians seem in broad agreement about moving the post-election violence cases to Arusha, Kibaki's efforts have stirred a heated debate among Kenyans over the suitability of the move.

Human rights activists have questioned the East African Court's capacity to handle the cases, saying the Rome Statute does not provide for the transfers out of the Hague. Activists have also argued the court is ill prepared to deal with the cases, despite the latest jurisdiction to handle criminal cases.

"The LSK (Law Society of Kenya) is opposed to the transfer of the cases," Eric Mutua, the LSK chairman told journalists in Nairobi on 30 April.

Among the court’s shortcomings, activists say, are its set-up, its mandate, and its funding.

"It’s a long shot," said Wainana Ndung’u, the executive director of the International Centre for Policy and Conflict. 

"The problem is that those who [are] proposing to move the cases are employing political approaches rather than technical and legal," he observed. "I don’t see it working in the current circumstances. There is a lot that need to be done, if the court is going to able to handle criminal cases of this nature." 

Many activists praise the notion of strengthening of the East African Court, but some also accuse Kibaki of attempting to protect the accused.

The attention that Kibaki is according the Ocampo Four cases raises questions about whether Kibaki himself fears prosecution, after he relinquishes power in 2013.  

"He may want a friendly court in such a situation," said Ndung’u.

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