Lawyers back EALA resolution over ICC cases

Local legal experts believe that the East African Court of Justice (EACJ) possesses the necessary capacity to try criminal cases against four Kenyans who are accused of fuelling post-election violence in their country four years ago.They were reacting to yesterday’s resolution in which East African Legislative Assembly (EALA) members collectively endorsed and adopted a motion urging EAC Heads of State to call for the transfer of the Kenya post election violence cases to the EACJ from the ICC.The motion, introduced by Dan Wandera Ogallo from Uganda, is expected to be presented to the regional 10th extra ordinary session of the EAC Heads of State Summit that convenes today in Arusha.The ICC, based in The Hague, is accusing the Kenyans of being behind the violent aftermath of the 2007 disputed elections. The accused are Deputy Prime Minister Uhuru Kenyatta, former Head of Civil Service Francis Muthaura, Eldoret North MP William Ruto and journalist Joshua Arap Sang. The violence began after clashes between supporters of then rival presidential candidates – Raila Odinga, the current Prime Minister, and the incumbent Mwai Kibaki,–in which more than 1,200 people were killed and 600,000 more displaced in weeks of unrest.“If the regional court (EACJ) is given the mandate and jurisdiction to handle these cases, it would be fair since the suspects will be tried in the areas where they committed crimes,” said Frank Mwine Mugisha, an expert in international law.“We have capable judges in the region who can handle such international cases. If an international court (ICTR) can send people like Jean Bosco Uwinkindi to be tried by local judges in the domestic courts, why not these officials”? He observed that Uwinkindi who is accused of participating in the 1994 Genocide against Tutsi, faced international cases akin to the Kenyan officials, adding that both cases could be handled locally.The president of Kigali Bar Association, Athanase Rutabingwa observed that if the cases are transferred to the regional court, it would reduce on the transport costs incurred to travel to the Netherlands. He, however, pointed out that the EACJ ought to be given a mandate to deal with criminal cases since it only handles arbitration and commercial cases within the partner states. “The East African Court of Justice has no mandate to handle criminal cases. However, if the cases are to be transferred, the treaty has to be amended to give the court (necessary) jurisdiction to try these cases,” he noted.Though, if there is a request to transfer the cases to the EACJ, it would be a major triumph for the regional court as member countries are yet to fully utilise it.According to the statement, the Kenyan Assistant Minister for EAC, Peter Munya, supported the motion, saying the cases were best suited to be heard and determined at home or at the EACJ – its nearest home. “We must never allow ourselves to return to neo-colonialism,” Munya reiterated, stating that any facts on the ground could easily be ascertained by a court within the local jurisdiction. The East African Court of Justice was established under Article 9 of the treaty for the establishment of the East African Community, and its major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the treaty.

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Lawyers back EALA resolution over ICC cases