Forget International Criminal Court, the cases are crumbling
The Office of the Prosecutor (OTP) has leaped from one legal tragedy to another. The manner in which its legal tactics have petered out has reached a tumultuous ‘no road ahead’.
Uhuru Kenyatta and his defence counsel have literally marched around the perceived impregnable walls of ICC and the fall of the Kenyan cases is of epochal proportions, aptly mirroring the walls of ancient Jericho.
There is a legal cul-de-sac at the court with respect to the Kenyan cases. The only question on everyone’s lips now is, where did the rain start beating ICC?
Luis Moreno-Ocampo and his successor, Fatou Bensouda, have shown the world how not to prosecute.
No criminal charge has ever been sustained by shoddy investigations, buttressed by hearsay and chains of maybes and what-ifs. Relying on unreliable witnesses, hoping on hopeless witnesses, the cases are headed for an unrestrained halt.
OTP failed to plan to the very end. As a matter of strategy, it is advisable to use 80 per cent of time planning and strategising and the remaining 20 per cent in execution. The intermittent strategies employed by OTP in these cases were at the very least pitiable, at the very best regrettably wanting.
OTP paradoxically reversed this strategy. Moreno-Ocampo was so extravagant with words, but sadly, so economical with execution. Good generals are known by the ravaged countries through which they pass, which says a lot about the former prosecutor.
Words do not convict, but even the Western nations, whose lips dripped with the cacophonous ‘very limited dealings with ICC indictees’ have uniformly lowered those voices to zero decibels.
Further, allegations of coaching of witnesses have not helped matters for OTP. The way in which ICC witnesses either recanted or withdrew their evidence smirks of a conspiracy theory worthy of a Hollywood blockbuster.
Even with allegations of the witnesses having been either bribed and/or threatened goes a long way in indicting the ICC systems and its witness protection programmes. Only decisive intervention from OTP could save ICC from the legal morass the latter finds itself in.
In trying to debunk the mythical notion that ICC targets Africans, the international court has not fared well either. Out of its nine official investigations, the notable indictees are Ugandan rebel leader Joseph Kony, Sudan’s leader Omar Al-Bashir, Libyan Muammar Gaddafi, Ivory Coast’s Laurent Gbagbo, Kenya’s Uhuru Kenyatta and William Ruto.
Historically, African nations contributed immensely to the establishment of ICC and particularly, establishment of OTP.
It is not lost upon Africans that the reigning Chief Prosecutor, Fatou Bensouda, is an African, but ICC would still need more than just a public relations onslaught to convince the world that its judicial eyes are not masked by politically-tinted lenses.
Legally speaking, there are very few options available going forward. Referring Kenya to Assembly of State Parties (ASP) for non-co-operation in pursuance of Article 87 of the Rome Statute.
ASP elects officials of the ICC, approves its budget, and recommends and adopts amendments to the Statute. There is no mention as to what ASP does with the non-co-operating state party. This is a legal quandary, adjourning Uhuru’s trial indefinitely.
Unfortunately, there is no precedent to this. The other misfortune with this option is that it denies the accused person the right to a speedy trial. On temporary withdrawal of charges against Mr Kenyatta, the question one would ask is, temporary till when and for what? The more the cases stay at the ICC, the more they continue losing evidence. They would need some divine intervention to nail the Kenyans charged at the ICC after so many years, render a verdict of ‘not guilty’ in favour of Kenyatta.
Such a verdict would require a semblance of a trial which unfortunately the OTP is not prepared for and terminating the cases for Kenyatta, and by extension Ruto and Arap Sang. This is the most plausible option for ICC. It is not good enough to allege. Whoever alleges must prove.
Without such proof, which is only housed in hard evidence that can never be rebutted, the cases are nothing but a movie script. This of course would deal a death blow to ICC, and more so to OTP. I guess Moreno-Ocampo has nothing to lose.
He would be traversing the world lecturing law students on the antonym of prosecution. What next for Kenya and the victims? Justice is no happenstance. It is a process with myriad aspects.
If Person A invades his neighbour’s house and kills, maims the members of such household with the effect that the neighbour, having survived the ordeal, is displaced from his land, retributive justice demands that Person A is brought to book and punished severely.
Restorative justice would demand that the neighbour is given back his house and land and all that he lost. In our Kenyan situation, the government ought to identify all the victims of PEV and provide reparation for all of them devoid of discrimination based on place of origin, ethnicity and/or other grounds.
Our only option as a country now hinges on full implementation of Agenda Four items as proposed by the Committee of Eminent Persons. We must not lose track of the complementary nature of ICC. It is incumbent upon the government of Kenya to bring justice to all the victims.
By Okula Jack