The ICC's Dilemma In Uhuru, Ruto Cases

A version of this article was published in The Star.

Last week, Uhuru Kenyatta made history. On Tuesday, he became the first sitting President to hand over power to his Deputy and two days later, paradoxically was the first sitting President to ever appear before the International Criminal Court. On his return, he was treated to a hero’s welcome with thousands thronging the streets, egged on by his administration. According to one poll, his approval ratings soared to 71 percent, compared to 43 percent just two months ago.

“Politics is theatre. It doesn't matter if you win. You make a statement. You say, ‘I'm here, pay attention to me’” said the gay American politician, Harvey Milk. The unnecessary theatrics of handing over power and resuming office –“a temporary abdication,” Sky News called it- showed just how well the Kenyatta administration understands this. In fact, he and his Deputy, William Ruto, have skilfully managed to turn their indictments for crimes against humanity to their political advantage, easily slipping into the role of victim. In fact they have utilised a trope long made famous by Kenyan politicians. Every time one of them has been threatened with prosecution for economic crimes or political violence, they have mastered the art of using their ethnic communities as a shield. So effectively, they paint themselves, and their communities, as victims and generate political heat to prevent the cases ever being judged on their merits. Failing that, there is always the time-honoured practice of bribing, intimidating and even murdering witnesses.

In the cases before the ICC, we have seen elements of all these strategies. First was the sustained campaign to paint the court as anti-African and to transform the duo into the victims of “the toy of declining imperial powers” as President Kenyatta described the court at the African Union. This is the “our community is being targeted” argument. That African nations form the largest single group of signatories to the Rome Statute, that the Prosecutor is African and that the many of cases, including, arguably, the Kenyan ones, were referred to the ICC by African nations themselves are facts that are not allowed to stand in the way of this performance of collective victimhood. Why Sudan and not Syria, they cried, ignoring that while both are not signatories to the treaty, the latter has cultivated friends at the UN Security Council who have prevented any reference of the situation to the ICC. Omar Bashir, however, is not so lucky in his alliances and indeed it was the Security Council that got the ICC involved in his case. But it is easier to demonize the ICC than to go after the Security Council. And they are not after the Security Council anyway.

Then there was the attempt to turn up the political heat and to get the cases either postponed or dropped altogether.  From the UN to the AU to the Assembly of State Parties, the Kenyan Government pulled all the stops, declaring that these cases were no longer the “personal challenges” of presidential candidates, but the national security issues of the entire country. The prosecutions threatened the fragile peace between the Kikuyu and Kalenjin communities who, though reconciled, were apparently raring to have another go at each other’s throat. It was only the promise of impunity that kept them apart, or so the story went.

When a poorly attended extraordinary AU summit embraced the position that no African head of state should be prosecuted while still in office, the Kenyans wasted no time declaring a massive victory. The fact that it was reportedly just 15 out of the continent’s 54 countries that endorsed the view was irrelevant. The show must go on! However, the UN and the ASP took a rather dim view of that proposition, the former declining to stop proceedings and the latter only agreeing to change the rules to allow the two accused to skip some court sessions and to attend via video link. Of course, the fact that the Kenyan constitution specifically allows for the prosecution of the President did not appear to give the government pause for thought. Worse, it did not lead any of our parliamentarians or journalists to ask why the Uhuru administration was seeking to subvert the clear intention of the basic law that the Presidency not serve as a shield for those charged with international crimes.

Alongside all this, strange things were happening with the witnesses. Some died, others had their identities revealed, still more begun to withdraw, some turned out to be liars, yet others had sudden attacks of conscience and claimed to have been enticed to lie on the stand through promises of relocation to Europe.  Reports begun to emerge of cartels hunting down and threatening or bribing witnesses. As well, the prosecutor was complaining of non-cooperation from the government which was accused of withholding evidence which became increasingly crucial as witnesses dropped out. 

Soon, Madame Fatou Bensouda was admitting that she no longer had enough evidence to sustain a conviction. But the show must go on, she argued, saying that it would be a mistake to reward the government’s intransigence. On their part, many Kenyatta’s supporters took to claiming that in fact there was no evidence at all and that he had been framed.  However, the OTP, at the last status conference summarised the evidence it had, including witnessed and phone records linking Kenyatta to the financing of the Mungiki terror gang to carry out attacks.

So where do we stand today?

As a court of last resort, it was indeed the failure to set up a credible local tribunal to try the elite that forced the ICC to act. But, for such a landmark case, the first attempt to hold a sitting head of state to account, the trials have revealed the weakness at the heart of the international justice system and just how vulnerable it is to both political pressure and governmental manipulation. Ironically, it is to escape these very factors that many put their faith in the ICC in the first place, viewing it as a panacea for weak local courts unable to hold powerful elites to account.

However, the tough realities of trying to prosecute some of the most powerful people on the planet have demonstrated that the court should not be oblivious to the politicising of its procedures and decisions. Arguments made inside the court are just as likely to be aimed at political constituencies as at the judges, and political theatrics are just as likely to affect the court’s ability to effectively try cases. Further, as has been demonstrated in the case of the Sudanese President, the ICC lacks the means to coerce even signatories of the Rome Statute, let alone those standing outside of the treaty, into abiding by its decisions.

This raises difficult questions for the supporters of the court and for those who struggle against official impunity. How to ensure cooperation from the very governments whose leaders it is trying to prosecute? How to protect the court’s credibility without miring it in the muck of local and international politics? Does the Rome Statute need to be amended to give the court real teeth in enforcing its decisions? These and other issues will continue to engage those working to make real the promise of accountability long after the circus has left town.

Despite Its Faults, The ICC Is Still Important

There is a lot that is wrong with the international justice system. It is not only selective in the cases it chooses to pursue, but many times is weighed down by political as opposed to exclusively legal considerations. In recent times, it has not even proven itself as a particularly effective means of meting out justice even to those it has opted to pursue as evidenced by the International Criminal Court’s woeful conviction record.

Yet for all its faults, it is still important. For many in countries where dominant elites murder and plunder with impunity, it still represents a hope for justice. This was the reason why a few years ago, the majority in Kenya favoured trials at the Hague for those most responsible for the violence that followed the December 2007 elections in which more than 1,200 of our countrymen lost their lives and hundreds of thousands more were displaced from their homes.

One of those who pushed for the trials was Ngunjiri Wambugu who in 2011 was part of a coalition of civil society groups who repudiated the Government’s position that Kenya’s sovereignty, as opposed to criminal liability, was at stake in the cases facing six Kenyans at The Hague. As director of Kikuyus for Change, he even reminded Uhuru Kenyatta, who was then Deputy Prime Minister, that “ the Agikuyu have not been charged at the Hague ... He will be going to the Hague to represent himself, in his own capacity.” Pouring cold water on Kenyatta’s “new found friendship with William Ruto”, he wrote that most Kikuyu’s were interested in “getting justice for the victims of the last election-related violence incidences.”

Of course, Ngunjiri Wambugu has since changed his tune. In his weekly column in this paper barely two years later, following the 2013 elections which delivered Uhuru to the Presidency, Mr Wambugu seems to have had an epiphany of sorts. Suddenly, President Uhuru and his deputy were not “two individuals with cases in the [ICC]”. He also discovered that “that the African continent has its own traditional system of resolving the kind of conflict that the first world calls “crimes against humanity” and castigated his erstwhile colleagues in civil society as “crying louder than the bereaved” suggesting that “while we agitate for justice for 2007, the victims might have ‘moved on’”.

I fully respect Mr Wambugu’s right to change his mind on issues. That in itself is not a bad thing. Only a fool never changes his mind, and I do not think he is one. I am, however, interested in why and I suspect that his reasons have more to do with outcomes than they do with processes. After all, didn’t “traditional system of resolving the kind of conflict that the first world calls ‘crimes against humanity’” exist before March 2013? Clearly, justice, at least of the restorative and punitive variety, is yet to be delivered to the victims of the post-election violence. Is it his understanding now that due to President Kenyatta’s “friendship with William Ruto” the victims are no longer interested in this?

The only thing that changed in March 2013 was the outcome of the election. Even as President, Uhuru Kenyatta remains eminently prosecutable and our own constitution makes no bones about this. “The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity” it says in Section 143(4).

In his most recent piece, Mr Wambugu decries the fact that the ICC prosecutor continues to pursue a case that “she does not have enough evidence to sustain” and even suggesting that the demand that the Kenya government cooperate with the ICC is akin to asking it to “self-emollate” (sic). It is curious that he considers requiring the government to follow the law as a form of self-sacrifice. We did not set up the government to pursue the “personal challenges” of its executives but rather the national interests of the entire public. Its duty is to uphold the law, even when –actually, especially when-  that goes contrary to the interests of the dominant political elite. It is the failure to do this, to enforce the law and to punish the President when he breaks it that is the very reason we turned to the Hague in the first place.

From ignoring court orders to arrogating to himself the powers to cancel title deeds and order police to cease enforcing the law against suspects, this President has shown himself to be in utter contempt of the constraints placed upon him by the law. Nothing illustrates this more than the employment of the machinery of the state to fight his “personal challenge” and to subvert the letter and intent of our constitution.  In the face of this assault, our institutions, from Parliament to the courts, have proven themselves impotent in holding him to account.

Mr Wambugu is more concerned about the outcomes than the processes. The fact that Uhuru Kenyatta’s case has collapsed is more important to him than why it did. The allegations of witness intimidation, of cartels hunting them down, threatening and bribing them, of the government failure to protect them, are of no consequence in his eyes.

However they should matter. Because, regardless of whether one thinks Uhuru Kenyatta and William Ruto are guilty or innocent, we should all be invested in a fair and transparent process. We cannot on the one hand be outraged by the seeming deficiencies and even allegations of criminal behaviour on the part of the ICC prosecutor, while ignoring similar allegations of witness tampering by (one can only assume) agents of the defendants and the egregious behaviour of the Kenya government.

Eventually, the ICC judges will determine whether the Madame Fatou Bensouda has evidence or not, whether she has behaved in a manner that upholds the dignity of the court. More than the specific outcomes, however, what should matter to us is the conduct of our own government and of its officials in this matter. If the rule of law is to prove to be a lasting restraint on the appetites of our elites, its threat must be credible.

The ICC process, for better or worse, is a part of our laws and undermining it, as the government has done, is undermining the very basis, the constitution, on which we hope to build the edifice of a nation dedicated to the welfare of all its people, and not just that of its rulers.

Who Today Speaks Of The Kenyans?

When, following the Second World War, the surviving Nazi and Japanese leaders, were arraigned in military courts to face charges of, amongst others, crimes against humanity, Chief Prosecutor Robert Jackson described the trials as “one of the most important tributes that Power has ever paid to Reason”. However, given that only crimes of the Axis Powers could be tried and that it was not a defense to argue that the Allies had done many of the same things the Axis Powers were being accused of, "one of the most important tributes that Power has ever paid to Reason” turned out to be little more than victors' justice.

Last week, nearly seventy years after Nuremberg, we witnessed another example of victors’ justice in a crimes against humanity trial. International Criminal Court prosecutor, Fatou Bensouda, surprised no one with the admission that the case against President Uhuru Kenyatta with regard to the 2007/8 post election violence had practically collapsed. It perhaps was never a strong case to begin with and the ICC’s dismal track record in securing convictions does not inspire much confidence.  However, it would be hard to deny that the death knell for the case was rung on the day Uhuru and his fellow indictee, William Ruto, won the 2013 elections and ascended to the highest office in the land.

The campaign that followed, which sought to intimidate both the court and its witnesses, was unprecedented in its ferocity. And it succeeded. Many of the witnesses had sudden changes of heart or experienced what can only be described as an attack of conscience - previously suppressed memories of being bribed and coached abruptly surfaced. At the same time cartels were said to be hunting witnesses down, the government was expending huge amounts of time as well as diplomatic and fiscal resources trying to stop the trial and ignoring the Constitution. Specifically Article 143(4) which expressly allowed for the prosecution of a sitting president.

As the President looks set to cast aside the “personal challenge” he has succeeded in disguising as a national problem, similar things are happening in his Deputy’s case. Meanwhile, we long ago learnt that the other 4500 pending PEV cases meant to be prosecuted locally had similarly collapsed. The rub of it is that no one will now be held responsible for the deaths of 1200 Kenyans and the maiming and displacement of hundreds of thousands of others.

Such impunity is, of course, nothing new in Kenya. In fact, it was because of our scepticism over the ability of local justice system to deal with our high and mighty that many were ready to say: “Don’t be vague; It’s the Hague.” However, when it came to it, our incestuous elite closed ranks to protect one of their own. Nary a voice was raised, even in the opposition when the state subverted the Constitution, refused to cooperate with the ICC and failed in its duty to protect witnesses. In fact, even before the election, the CORD coalition, under Uhuru’s bitter rival, Raila Odinga, had promised to scuttle the ICC trials if he won. Few politicians on either side are perturbed by the failure to prosecute more than a handful of PEV-related cases.

The collapse of these PEV cases, both locally and at the ICC, is profoundly depressing because it reinforces the disposability of Kenyan lives. The fact is, from the dawn of our history, Kenyans have been regularly slaughtered in large numbers, mostly at the behest of our ruling elites who picked up their bad habits from the colonials. And throughout, impunity has been the order of the day. The Indemnity Act, which formed a crucial part of the constitutional and legislative framework for the application of emergency laws in Northern Kenya , gives blanket immunity to all government personnel for crimes committed against the population of North Eastern Kenya during the Shifta War in which up to 7000 people died. No one has been held responsible for the many subsequent massacres in the same region nor for the government-instigated mass killings and displacements in the 1990s. According to the Kenya Human Rights Commission, “from 1991 to 1996, over 15,000 people died and almost 300,000 were displaced in the Rift Valley, Nyanza and Western Provinces. In the run-up to the 1997 elections, fresh violence erupted on the Coast, killing over 100 people and displacing over 100,000. ”

Rather, the men on whose watch many of these murders and displacements occurred are today feted, both in death and in life. Within the last month we have solemnly marked 36 years of the death of Jomo Kenyatta and celebrated Daniel Arap Moi’s 90^th birthday. At these anniversaries, the many victims of their brutal rule remained conveniently hidden and forgotten, their lives and suffering as cheap today as it was when it was inflicted.

The fact that Kenya refuses to demand justice for its people is the most telling sign of how little our lives are esteemed. The fact that we die and are displaced nameless and in nice round numbers is a marker of our individual insignificance. There are no monuments to remind us of the thousands we have sacrificed for our elites save for the hidden camps for the displaced whose existence the government is quite happy to deny. For most of the time they are invisible, their unending suffering rendered meaningless. Even during the ICC trials, they have mostly remained unseen.

The ease with which we have forsaken our brothers and sisters does not bode well for the future, not just of our countrymen, but also of the victims of similar across the continent. The charge of “crimes against humanity” was first articulated in reference to the Armenian Genocide of 1915-18. However, the Turks were never formerly prosecuted under international law. This failure to hold them to account paved the way for the Nazi Holocaust. As Adolf Hitler rhetorically asked his generals: “Who today still speaks of the Armenians?”

Who today will speak of the Kenyans?

You Asked For It!

Joshua arap Sang, who was on Wednesday served with summons to appear at The Hague on April 7, has told Capital News that he has written to the ICC asking for help in meeting expenses for a ticket, accommodation and meals.

I've Got Woes!

... In different area codes...

It's His Turn To Eat

Kibaki's New Year Message

The other day, I got to thinking about the President's New Year message to the nation and especially his rather oblique references to the indictments expected to be handed down by the ICC. While I do not expect that he will do our MPigs bidding and assent to their ludicrous attempt to pull us out of the Rome Statute, I nonetheless still believe that he shares their ultimate goal: to preserve the culture of impunity by protecting the organizers of the post-election violence. The only difference is that he proposes to do it, not through an unconstitutional Act of Parliament, but through a wholly incredible and implausible local tribunal.

Incredible because no one in their right mind actually believes that there exists the political will to actually dispense justice to the coterie of murderers named by the ICC prosecutor, Louis Moreno Ocampo. Otherwise, arrests would have taken place two years ago and by now their cases would be nearing completion.

Implausible because, as the President put it: "We must all take due care to ensure that the process of seeking justice, does not erode the gains we have made in the direction of national healing and reconciliation." So there we have it. The priority for a local tribunal is not to ensure that criminals get their due but rather to preserve the "gains" secured by the reconciliation process, which gains mainly consist of lucrative positions for the masterminds of the violence.

The truth is Kenyans today find themselves in the modern-day Manor Farm, witnessing what appears to be a row in the farmhouse. Mwai Kibaki and Isaac Ruto are each attempting to play an ace of spades simultaneously. Though voices may be raised, they are all alike. No question, now, what has happened. The citizens may look from MPig to President, and from President to MPig, and from MPig to President again; but already it is impossible to say which is which.

Six Cases Please

Not So Blind Justice

Bashir vs The AU

Methinks The Minister Doth Protest Too Much...

Waki's Bully Tactics?

Isn't it just great to see the consternation that the Waki report is causing our previously untouchable politicians? The thieving, murderously incompetent rabble-rousers deserve everything that's coming to them.

Waki-ing up to Reality

Surprise, surprise! It now emerges that the change of mind by principals in ODM and PNU regarding the implementation of the Waki report had nothing to do with the interests of Kenyans at large. It is instead a cynical attempt to keep instigators and  perpetrators of the post-election mayhem away from the hands of prosecutors at the International Criminal Court. 

[T]he Nation learnt that the fear that post-election violence suspects could be taken to the ICC at The Hague, The Netherlands, is behind the change of mind by some MPs within PNU and ODM.

Sources said PNU leaders were taken through the Waki report and its implications if a local tribunal was not formed by lawyers Mutula Kilonzo who is also Metropolitan minister and former Kanu chief whip Justin Muturi.

Mr Kilonzo managed to convince 10 Cabinet ministers allied to PNU not to dismiss the report as this would land the suspects in the ICC....

Mr Kilonzo, Mr Sirma, MPs Bonny Khalwale and Cyrus Jirongo said MPs had read and understood that it was futile to dismiss the Waki report when it had a self-implementing mechanism.

Yesterday's 9pm TV news reports showed Deputy Prime Minister Musalia Mudavadi recommending adoption of the report on the basis that it would be easier to manipulate a local tribunal than to deal with the ICC. In fact, the Daily Nation further reports that there are already moves to "propose amendments to the Waki recommendations to ensure that instead of having two foreign judges and one local in both tribunal courts, two judges should come from Kenya" once the report is tabled in Parliament. (Since this was not a Parliamentary report, it is unclear on what authority the MPs would amend it.)  

It is thus clear that there never was any intention of ensuring that those responsible for the rape, murder and displacement of thousands faced justice. On that score alone, we should do away with the whole idea of a local tribunal. Since both parties were keen to report one another to the ICC in January, I think we should grant them their wish and let Luis Moreno-Ocampo have his way with them.

Fiat justitia, ruat coelum (Let justice be done, though the heavens fall)!