Nakuru
is a lakeside city in Kenya’s Rift Valley, a destination for safari
tourists and part of the Great Rift, the tectonic seam that gave birth
to humanity and will one day rend Africa in two. Kenyans often refer to
the valley simply as the Rift, a nod not just to the millions of years
of volcanic tumult that produced its magnificent landscape but also to
the centuries of tribal warfare it has seen.
In
December 2007, Eric, a day laborer now in his late 20s, who asked to be
identified only by his first name, was living on the outskirts of
Nakuru with his wife and young daughters, in one of the shanty
neighborhoods tourists don’t see. That month, Kenya held an election. It
was to be only the second truly open contest in the country’s history,
but typically for Kenyan politics, it was cleaving along tribal lines.
The incumbent, a conservative bureaucrat named Mwai Kibaki, was a member
of the Kikuyu, Kenya’s predominant tribe. His challenger, Raila Odinga,
Kenya’s foremost liberal provocateur, was a Luo, who historically were
the Kikuyu’s main rival for power. Odinga had assembled a broad ethnic
coalition, capitalizing on resentment of the Kikuyu.
Nakuru
was majority Kikuyu but had a sizable population of other tribes. As
the election approached, Eric, a Luo, became anxious listening to his
Kikuyu friends, who insisted Kibaki be returned to office at any cost.
The Kikuyu had liberated Kenya from colonialism, they insisted, and the
country was rightfully theirs. Other tribespeople were demanding the
president be forced from power. “We were just agreeing with what they
were saying,” Eric told me, when I spoke with him recently. “We were
afraid that if we did not, it would come to fighting.”
After
Kibaki was declared the winner, death squads led by members of the
Kalenjin tribe loyal to Odinga’s coalition set to massacring Kikuyu
throughout the Rift Valley. Then men with a Kikuyu criminal gang, called
Mungiki, began retaliating. Soon word came that the gang had arrived in
Nakuru. “They came to revenge,” Eric heard. By day they set up
roadblocks, where they stopped civilians and murdered and raped them in
plain view; by night they assailed homes.
Eric
took his family to a displaced-persons camp next to the police station,
but there was no food, so they left. He was asleep one night in early
January when he heard voices outside his home. He got under his bed. A
group of men entered and told him to come out.
“I’m Kikuyu,” Eric said instinctively.
They
demanded to see his identification. He said he’d left it at work. They
spoke in the Kikuyu language to him, to see if Eric could answer. He
knew only a few words. “Asha,” he kept saying: No.
One
of the men found Eric’s ID. His family name is clearly Luo. The
intruders began beating him. One asked if he was circumcised.
(Circumcision is a Kikuyu tradition and point of pride.) Eric cried that
he was. They tore his pants off.
“You lie!” they yelled.
“I
pleaded with them,” Eric told me. “ ‘Leave my life, please. In God’s
name.’ They could not hear that. They went ahead with their plan.”
A man forcibly circumcised him with a machete. Then they hacked at Eric’s arm and head until he lost consciousness.
The
violence spread across the country. Though Kenya is among the most
developed places in Africa, for two months, death and torture were meted
out with machete, club and knife. People were dismembered, gang-raped,
burned alive in homes and churches. Many men were, like Eric, forcibly
circumcised. Kenya was brought to the brink of civil war. The official
number of dead was between 1,100 and 1,200 by the end of February 2008,
when international envoys brokered a truce, though Kenyan investigators
say the real figure is probably much higher. Roughly half a million
people were displaced; many never returned home. It was the worst crisis
Kenya had faced since its fight for independence a half-century
earlier.
In 2010, the International Criminal
Court, the Hague-based tribunal created in 1998 to try the worst
atrocities on earth — war crimes, crimes against humanity and genocide —
announced plans to charge six Kenyans for orchestrating the
postelection violence. The most important suspect was Uhuru Kenyatta;
the son of Kenya’s first president, Jomo Kenyatta, he was considered by
many Kikuyu to be their natural leader. The court’s chief prosecutor,
Luis Moreno-Ocampo, sought to charge Kenyatta with five counts of crimes
against humanity, for inciting murder, rape, forcible transfer of
people, persecution and “other inhumane acts.”
During
his tenure at the I.C.C., which ended in 2012, Moreno-Ocampo examined
atrocities in a dozen countries and brought cases in seven. But the
Kenyatta case has come to define the court and, many would say, has
permanently discredited it. Moreno-Ocampo accused Kenyatta of suborning
the Mungiki to kill innocent Kenyans, but he also believed Kenyatta’s
crimes emerged from a tradition of impunity in Africa, one that would
continue unless he stepped in. He saw prosecuting Kenyatta as a way to
change not just a country but an entire continent and, in some small
measure, the world. “These were not just crimes against innocent
Kenyans,” Moreno-Ocampo said at the time. “They were crimes against
humanity as a whole.”
Kenyatta, now Kenya’s
president, not only denied the charges against him but also called the
I.C.C. “the toy of declining imperial powers.” It’s a view other African
leaders increasingly claim to share. Today Kenyatta is leading a push
at the African Union to abandon the court. In April, an African Union
committee considered a plan to demand that heads of state be immune from
I.C.C. prosecution, among other potentially crippling measures. At a
summit conference next month in Rwanda, it will continue a discussion
about collectively withdrawing from the court. With all but one of its
open cases related to crimes in Africa, this would almost certainly
relegate the I.C.C. to permanent irrelevance.
In October, I met
Moreno-Ocampo at the InterContinental Hotel in Vienna to discuss the
Kenyatta case. I found him in the lobby bar, slouched low in an ornate
settee, in jeans and a black long-sleeve collarless shirt. Except for
the MacBook Air propped in his lap, he looked like a detective in a
1960s French movie: mussed gray hair, bristling eyebrows, rakish trimmed
beard. When I phoned to arrange the meeting, we (mostly he) talked for
more than an hour. He was ingratiating, telling me, “You’re doing a very
important story.” But in Vienna he was at first circumspect — he’d
received word from colleagues that I was asking questions. He didn’t
stand but extended a reluctant hand from the settee, nodded and smiled
knowingly, as though we’d already met.
He soon
relaxed, and we talked for most of the rest of the day. As our
conversation grew more candid, he sank further into the settee,
eventually almost lying down, his feet on a cushion. At one point
Moreno-Ocampo, who is 64, took hold of his laptop and summoned YouTube.
He pulled up a clip from a Kenyan comedy program called “The XYZ Show,”
which lampoons figures in the news with puppets.
“Have
you ever seen this?” he asked me. Moreno-Ocampo was a running
character, and the real man adored the show. He turned up the volume,
unconcerned about the other patrons looking over in annoyance, and
laughed loudly. “Brilliant!” he said. “Great.”
Moreno-Ocampo
explained that argument was his birthright. His youth in Argentina was
punctuated by coups that divided his family. He went to law school
“because my country was a mess,” he said. In 1976, a military junta,
claiming Argentina was in the grip of a Communist insurgency, took
control. The junta, which killed, kidnapped or tortured more than 20,000
Argentines, counted among its members one of his uncles. After it was
ousted, its leaders were put on trial. In 1984, Moreno-Ocampo, then in
his early 30s, was made deputy prosecutor. (He indicted his uncle.) His
performance in court established his reputation, though some Argentines
were put off. Miriam Lewin, a journalist who was tortured and later
testified, told me that while Moreno-Ocampo appreciated the
momentousness of the trials, his idealism was undone by his arrogance.
“Many survivors didn’t want to come forward and talk because they were
afraid for their lives,” she said. “He didn’t seem to understand that.”
The junta leaders received stiff sentences, but in
1990 they were pardoned by a new president. “I was furious,” Moreno-Ocampo told me. “The trials were not just about the crimes. It was a way to change the country.”
Notions
of human rights that transcend borders originate in antiquity, but the
first international war-crimes tribunal, historians believe, did not
take place until the 15th century. The first large and truly successful
one was not until almost 500 years later, at Nuremberg. After the Cold
War, human rights became a centerpiece of Western foreign policy, at
least nominally, and in the 1990s, the United Nations Security Council
set up criminal tribunals for the former Yugoslavia and Rwanda. Sierra
Leone, Cambodia and Lebanon followed. In June 1998, diplomats from 160
countries gathered in Rome to discuss a permanent international criminal
court.
African
diplomats were particularly intent. On top of the genocide in Rwanda,
the 1990s had brought civil wars or campaigns of systematized violence
to the Democratic Republic of Congo, Uganda, Sudan, Sierra Leone,
Liberia, Somalia, Algeria, Burundi, Niger, Ivory Coast and Chad.
Atrocities were committed by officials who also controlled their
countries’ justice systems. For its Western proponents, an international
criminal court was largely a matter of conscience. For Africans, it was
a way to fight impunity. “We wanted ways of enforcing good government
in Africa,” Betty Murungi, a lawyer in the Kenyan delegation in Rome,
told me.
When the court was formed, it was, one
observer wrote, “an international epiphany.” It was also, it seemed, a
great moment for Africa. Senegal was the first country to ratify the
court’s founding treaty, the Rome Statute. Archbishop Desmond Tutu
called the I.C.C. “Africa’s court.” Today, 34 of the court’s 124 member
states are African, the largest contingent after Europe’s.
In
2003, after the I.C.C. received the 60 ratifications it needed to begin
work, Moreno-Ocampo was appointed chief prosecutor and moved into the
court’s offices in a white metallic tower in The Hague. Member states
had the ability to refer atrocities within their borders if they felt
they could not handle investigations, as well as to refer them in other
member states. The Security Council could refer investigations anywhere.
And Moreno-Ocampo had the power to open investigations without any
referral if he could show an atrocity had been committed and wasn’t
being redressed.
In one of his first speeches in
The Hague, Moreno-Ocampo announced he was monitoring the violence in
Congo and invited its government to make a referral. The Congolese
president did so several months later. Then the president of Uganda,
Yoweri Museveni, approached Moreno-Ocampo. Joseph Kony, whose Lord’s
Resistance Army had torn apart northern Uganda, had proved uncatchable.
Perhaps the I.C.C. might force him out of the bush? Moreno-Ocampo began
investigations in both countries. He was pleased: His first two
inquiries addressed major atrocities in Africa, the continent that most
concerned him and human rights advocates, and each had begun by
invitation.
For Uhuru Kenyatta, rule
was a birthright. His father, Jomo Kenyatta, was imprisoned by the
British colonial government during the fight for independence. After
Jomo was freed and elected president of an independent Kenya in 1964,
however, his revolutionary impulses didn’t persist. He stocked the
government and businesses with family members and fellow Kikuyu and
“operated with little concern for the niceties of law,”
the historian Charles Hornsby writes,
“traveling with his inner circle from residence to residence like a
medieval monarch.” Jomo’s portrait still adorns every denomination of
paper money in Kenya, and his family is believed to be the country’s
largest landholder.
After graduating from Amherst
College in Massachusetts, Uhuru showed little interest in politics
before 1997, when, in his mid-30s, he stood for Parliament and lost. In
2002, he ran for the presidency, on the strength of his name, and lost
again. The man who beat him, Mwai Kibaki, had been a close friend of
Jomo Kenyatta’s. Kibaki took Uhuru under his wing, later putting him in
the cabinet and, it was clear, grooming him as his successor.
To
many Kenyans, Uhuru — whose personal fortune, most of it presumably
inherited, has been estimated at a half-billion dollars — embodies their
country’s inequity. More than a quarter of Kenyans live on less than
two dollars a day, according to World Bank estimates. So taken for
granted are corruption and impunity that the country’s official and
criminal classes are often indistinguishable.
Kenyatta’s
rise coincided with the rise of Mungiki, the group Moreno-Ocampo would
later accuse him of conspiring with in the postelection violence.
Started as a tribal revivalist movement, Mungiki grew into a
militaristic political fraternity and then into a criminal gang. Around
the time Mungiki fought to take over the lucrative private bus lines
that are the main form of transport in Kenya, in the early 2000s, the
gang staged a massacre in northern Nairobi that left severed heads
scattered in the streets.
By then, Mungiki was
being described as a “state within a state,” with up to two million
members, according to reports. They swore an oath of loyalty to the
Kikuyu tribe and the Mungiki leader, a charismatic, ruthless man known
as Maina Njenga. According to the I.C.C., new recruits “were told they
would be killed if they violated the oath or left the organization.”
When clashes broke out between Kikuyu and other tribes, Njenga
dispatched his men to fight.
He also persuaded
politicians to take the Mungiki oath. Paul Muite, a member of Parliament
at the time and now a lawyer who represents Njenga and other members of
Mungiki, which is still active, told me that almost every Kikuyu
politician of consequence he knew during that era took the oath. For
Njenga, it was “a way of collecting” power, Muite says. According to
Muite and a former lieutenant of Njenga’s with whom I spoke, one of the
politicians who took the oath, before becoming president, was Kibaki.
Some
Mungiki members, including Njenga, supported Kenyatta’s 2002
presidential campaign. Kenyatta denounced the group and would later tell
Moreno-Ocampo in court that “I have always publicly condemned and
stated that I have no association whatsoever with Mungiki.” Njenga’s
former lieutenant, however, described to me a series of meetings he
attended with Kenyatta and Njenga in 2002, saying that Kenyatta was
friendly with Mungiki. But, he added, Kenyatta didn’t like or trust
Njenga.
In the 2007 election, Kenyatta did not
run, instead supporting Kibaki in his race against Raila Odinga. By the
close of Election Day, two days after Christmas, the vote was too close
to call. The count was delayed. The tally center in Nairobi was
mysteriously broken into. Then on Dec. 30, the government suddenly
announced Kibaki had won. He was hurriedly sworn in, and a media
blackout was imposed. Odinga instructed his followers to protest. By New
Year’s Day, Kikuyu were being slaughtered. Mungiki began striking back
in January.
The
government did little to stop the postelection violence, but afterward,
it set up a commission of inquiry. Known as the Waki Commission, it
issued a 529-page report in October 2008. The Kenya National Commission
on Human Rights, an autonomous government agency, published a comparably
exhaustive report. Each was damning. Officials in Odinga’s party had
planned violence months in advance, while envoys of President Kibaki met
with Mungiki to plan retaliatory attacks. Security agents and the
police had conspired with the gang. “There were no good guys,” a Waki
commissioner, Pascal Kambale, told me. “There were only bad guys.”
Moreno-Ocampo,
who monitored the violence as it was happening, traveled to Nairobi to
speak with Kibaki. He encouraged Kibaki to refer Kenya to the I.C.C., as
Congo and Uganda had made referrals. Government capacity wasn’t the
problem, Moreno-Ocampo knew. Kenya was capable of trying the suspects.
The problem was as it had been in Argentina: The government was the
criminal. And not only the government. The National Commission on Human
Rights report listed more than 200 suspected inciters and funders of the
violence, including presidential cabinet members, legislators,
businessmen, shopkeepers, farmers. In a moment of collective insanity,
Kenyan society had turned on itself.
Still,
Moreno-Ocampo continued to press Kenyan officials to begin prosecutions.
In 2009, the Kenyan Parliament voted against a tribunal —
unsurprisingly, as the Parliament itself was full of suspects — and
Moreno-Ocampo requested that the I.C.C. judges allow him to open an
investigation. They did. It was the first time he invoked his power to
seek charges on his own authority, without a referral.
The
challenges were considerable, he knew. It was one thing to investigate
militias at the invitation of a government, but quite another to
investigate a government. Yet Moreno-Ocampo felt this was what the
I.C.C. had been created for — to fight impunity. “This is a different
kind of case,”
he told The Times in 2010. “This isn’t about militias. It’s about politicians and political parties. It’s about investigating leadership.”
Polls
showed a majority of Kenyans approved of the I.C.C.’s intervention. An
editorial in The Nation, Kenya’s main daily newspaper, said, “No one has
ever come as close as [Moreno-Ocampo] to slaying the dragon of impunity
in Kenya.” On the buses of Nairobi, where operators compete for fares
by adorning their vehicles with icons — Jesus Christ, Tupac Shakur,
Arsenal forwards — Moreno-Ocampo’s face appeared.
The
I.C.C.’s preliminary examination in Kenya was based largely on the work
of the Kenyan commissions. Each had heard testimony that Kenyatta was
at meetings with Mungiki. The Waki report didn’t name Kenyatta, but the
National Commission on Human Rights report did,
saying that he reportedly
“attended meetings to plan for retaliatory violence by the Kikuyus” and
“contributed funds.” Kenyatta was considered by many Kikuyu, including
many Mungiki, to be their leader, and was understood to be the richest
man in the country. If anyone had the motivation and funds to back an
ethnic war, Moreno-Ocampo’s investigators reasoned, it was Kenyatta.
Moreno-Ocampo had by
now built important cases in Uganda, Congo, Central African Republic
and Sudan. “The world’s prosecutor,” as he was dubbed, seemed to be
everywhere: magazine spreads, cable news, Davos. His critics complained
that he thrust himself into the limelight, and they had a point — he
allowed four different feature documentary crews access to The Hague —
but even they couldn’t deny that he put the court on the map.
By
the time the preliminary examination in Kenya began, however, the other
cases had stalled. Only one trial, that of the Congolese warlord Thomas
Lubanga, was underway. The court’s lack of political and prosecutorial
powers were partly to blame. The United States, China and Russia had
refused to join it. George W. Bush openly tried to cripple it by, among
other things, demanding immunity for Americans. And Moreno-Ocampo had
none of the prosecutorial resources — subpoenas, surveillance, policing —
available to his domestic counterparts. Alex Whiting, a onetime federal
prosecutor in Boston who became Moreno-Ocampo’s prosecutions
coordinator, told me the Kenyatta case “was like trying to prosecute an
organized-crime case without the tools the Department of Justice uses to
prosecute organized crime” — though, for this reason, Moreno-Ocampo’s
temperament was an asset. “You have to have a big ego, because you don’t
have much else.”
But Moreno-Ocampo himself may
have been the greatest obstacle to the court’s success, members of his
staff told me. They didn’t question his devotion — he often worked seven
days a week, closely managing every case — but increasingly they
questioned his judgment, which seemed always caught between that ego and
his idealism. He inspired fierce admiration and dislike, sometimes in
the same people. One attorney, who resigned because he couldn’t stand
Moreno-Ocampo, nevertheless lauded the prosecutor’s commitment. Another,
whom Moreno-Ocampo reduced to tears in meetings, defended him to me
adamantly. When the journal World Affairs published
a critical profile of Moreno-Ocampo, one former staff member attacked another in the online comments section.
In
Vienna, I heard Moreno-Ocampo express remorse only twice. Once was when
I asked about the atmosphere in The Hague. “It was a mess,” he
acknowledged. “I fought with all of my guys, because I was involved in
everything. That’s the problem: All of us were totally emotionally
involved. If not, you’re not there.”
A larger
problem was his vision of the court’s mission. He believed in the
pre-emptive power of prosecution — “the shadow of the court,” as he
liked to call it. In his inaugural address in The Hague, Moreno-Ocampo
said the court’s success would be measured not by how many cases it
tried but by how few. One investigator I spoke with said Moreno-Ocampo
seemed to see the I.C.C. not as a forensic body so much as a “naming and
shaming” organization, like Human Rights Watch or Amnesty
International. And while it was true that the court’s small budget
limited the size of his investigations, he was, some say, already more
interested in prominence than evidence. A former court attorney told me:
“He would see the leader of a state and say: ‘There must be evidence
out there. Go get it for me.’ ”
The investigation
in Congo began calamitously. Bernard Lavigne, formerly a French domestic
prosecutor, became Moreno-Ocampo’s first lead investigator in Congo.
“We accumulated a lot of information about one militia,” Lavigne told
me. “Then suddenly, because of a political decision by Luis or his
political committee, we were obliged to change our planning and our
investigative work and concentrate on a new target. It was completely
crazy. ... We put in danger a lot of people.” The case Moreno-Ocampo
brought against Lubanga, for recruiting child soldiers, “barely
scratched the surface of the conflict,” Paul Seils, the first director
of Moreno-Ocampo’s preliminary-examination unit, says. Moreno-Ocampo
removed the lead attorney weeks before the trial commenced and clashed
with the presiding justice, who accused him of trying to undermine the
judiciary and pervert the Rome Statute.
In
conversation, Moreno-Ocampo has a habit of ignoring criticism. It’s
unclear if this is confidence or evasion. When I asked him about the
censure, he described that judge as “brilliant” and “great.”
After the United Nations Security Council referred the atrocities in Darfur to the I.C.C. in 2005,
the court charged President Omar al-Bashir of Sudan with crimes against humanity, war crimes and, later, genocide.
The judges issued an arrest warrant. There is little question Bashir is
guilty of the first two charges. He could be guilty of genocide too,
but the court’s investigation was not the best proof of it. An attorney
involved told me the prosecutor’s office did little independent work:
Investigators never went to Darfur. When I brought this up,
Moreno-Ocampo said: “Sometimes some of the lawyers are not going to
understand the case. I’m sorry for them.”
Bashir
was not popular in Africa, but he was the first head of state the court
charged. This made other leaders, especially those accused of
atrocities, nervous. It also vexed African Union diplomats who were
trying to broker a peace in Darfur. (Muammar el-Qaddafi, whom the court
would later charge with war crimes in Libya, was at the time the African
Union’s chairman.) In 2008, the African Union passed a resolution that
said charging African heads of state was an affront to the “sovereignty
and integrity of the continent.” Bashir called the I.C.C. a “colonial
court.” Self-serving though his position was, it caught on. Complaints
about the I.C.C.’s “Africa bias” piled up.
Unbowed,
Moreno-Ocampo pushed on in Kenya. In December 2010, he announced the
suspects he wanted to charge. For the first wave of postelection
violence, he named the chairman of Odinga’s party and Joshua Arap Sang, a
radio host who had broadcast anti-Kikuyu hate speech. A member of
Parliament, William Ruto, was accused of being the ringleader. For the
second wave, committed by Mungiki and the police, he named Kibaki’s
cabinet secretary, Francis Muthaura; the commissioner of police, Gen.
Mohammed Hussein Ali; and Kenyatta.
Before announcing the suspects, Moreno-Ocampo
met with Kenyans including investigators and lawyers at the Serena
Hotel in Nairobi. The lawyers approved of his desire to combat impunity
and prevent political violence during the next election in Kenya. But
they warned him that Kenya wasn’t Sudan or Congo. Its politicians were
just as ruthless but more sophisticated. The suspects would try to kill
the cases and discredit the I.C.C. So would President Kibaki’s
government. Kenyatta, elevated to deputy prime minister after the
postelection violence, was his protégé. “They’re going to fight back
very, very hard,” James Gondi, a Kenyan lawyer who had interned at the
I.C.C., told Moreno-Ocampo. But the prosecutor seemed unconcerned. He
pointed out that he’d put away generals in Argentina.
Later,
some questioned whether Kenyatta was as culpable as the case against
him claimed. George Kegoro, the Waki Commission secretary, told me that
when Kenyatta was questioned by the commission, he “saw himself as a
peacemaker.” Pascal Kambale, the Waki commissioner, said that
“irrespective of Kenyatta’s involvement, Mungiki was going to do what
they did.”
In the I.C.C. system at the time, the
prosecutor’s office collected enough evidence for the court to hold
pretrial hearings, in which the judges would decide whether there were
sufficient grounds to confirm the charges. If they did, the cases
proceeded. This gave defendants ample time to destroy evidence and
interfere with witnesses, a recurring problem.
By
the time Moreno-Ocampo’s team got moving in Kenya, more than two years
had elapsed since the postelection violence. Their investigation, which
would go on for over four years, was far more rigorous than those in
Congo or Sudan. They interviewed hundreds of victims and suspected
perpetrators. But many witnesses who had opened up to the Kenyan
commissions were no longer willing to speak.
Faced
with a dwindling pool of evidence, Moreno-Ocampo’s team approached
General Ali’s attorney with a possible offer: If Ali testified against
Kenyatta and Muthaura, the charges against him might be dismissed. The
Kenyan commissions had gathered strong evidence against Ali, but
circumstances had changed. The attorney general had forbidden the police
to speak to the I.C.C. According to Kenyan investigators with whom I
spoke, other police officers who were involved in the violence had been
killed. Ali turned down the offer. The judges didn’t confirm the charges
against him. The prosecutor’s office later withdrew the cases against
Muthaura and Odinga’s party chairman.
There was
one group willing to help the court: Mungiki. Many gang members were
gone — “killed or forcibly disappeared in an apparent cleanup
operation,” the prosecution claimed — but some were still alive and
willing to testify. Especially crucial were three confidential Mungiki
“linkage” witnesses. One claimed he saw Kenyatta at meetings where
attacks were planned; another, that he was told of these meetings,
though he wasn’t present; and a third, that he met with Kenyatta
beforehand to discuss violence.
The
case hinged on these men. But some people in the prosecutor’s office
worried about their reliability. Kenyatta’s attorney claimed in court
that the first two witnesses tried to extort him in exchange for
information that could aid the defense, and when he refused, threatened
him. He showed little evidence of the claim, but neither did the
prosecution dispute it. (“It strikes me as entirely plausible,” Benjamin
Gumpert, an I.C.C. lawyer who worked on the Kenyatta case, told me.)
Kenyans who knew the third witness, meanwhile, not only doubted his
account but also questioned whether he was in Mungiki. Maina Njenga’s
former lieutenant says the witness was never in the gang. There were
arguments in The Hague over whether to use him. The former court
attorney told me it appeared the man would say anything to get into the
court’s protection program. But the case against Kenyatta was too thin
to sacrifice him.
Moreno-Ocampo admitted to me
that the evidence against Kenyatta was not as strong as he would have
liked. But all he had to do for the moment was get through the pretrial
hearings. After that, more evidence could be found. And he had a card up
his sleeve: Maina Njenga.
Moreno-Ocampo’s team
had considered charging the Mungiki leader. Instead, they had turned
him. When Njenga was questioned by Kenyan investigators, he pleaded
ignorance. But to the I.C.C. investigators, he came clean. He detailed
the structure of his organization and its role in the violence. Njenga
claimed to his lawyer, Paul Muite, that he had personally administered
the Mungiki oath of loyalty to Kenyatta, though whether Njenga told this
to I.C.C. investigators is unclear. Njenga was “very forthright,” Muite
told me, and he later agreed to testify in The Hague.
Moreno-Ocampo cross-examined
Kenyatta on Sept. 29, 2011. Kenyatta had traveled to The Hague with
supporters, who filled the public gallery of the windowless blond-wood
courtroom. Kenyatta was not required to attend the hearings, nor to
testify, and some Kenyans had encouraged him to skip them in order to
spite Moreno-Ocampo. But he had a good reason to go: He intended to run
for president, and he would use the trial as a campaign set piece,
styling himself as a patriotic victim who had taken the fall for his
sinister political opponents and been attacked by arrogant foreigners.
At
first Moreno-Ocampo had been popular in Kenya. Once the charges were
announced, however, tribal ranks closed. The defendants stoked fears of
ethnic persecution. Privately, proxies did worse. “People would come in
knocking on the door at night and say, ‘We know that your son is with
the I.C.C.,’ ” Phakiso Mochochoko, who ran witness protection for the
I.C.C., told me. “ ‘We’re going to burn down your house tomorrow.’ ”
Witnesses and court personnel were exposed. The court’s Kenyan outreach
coordinator received death threats. One victim’s attorney in the
Kenyatta case left the country for his safety. Mochochoko says, “We have
never had a case with this level of threats, directed not only at
witnesses but anyone perceived to be witnesses, or perceived to be
cooperating.”
But some of the indignation was
genuine. There was a gulf of understanding between the court and Kenya,
one Moreno-Ocampo, whose political guile was undercut by his political
tone-deafness, never quite grasped. The court’s very mission involves
trying atrocities that stem from cultural conflicts whose nuances its
lawyers and judges, from their remove in The Hague, can’t hope to fully
appreciate. “I’m not at all sure that international courts really are
set up to understand the realities of the conditions they’re
investigating,” Paul Seils, of Moreno-Ocampo’s preliminary-examination
unit, told me.
Many Kenyans didn’t see why so few
should stand trial for a social upheaval caused by so many. They thought
the defendants were guilty and were proud of them for it. Kikuyu
believed Kenyatta had protected them in a tribal war. Non-Kikuyu felt
the same of William Ruto. And the Kenyatta case in particular had
unsettling reverberations. Kenyatta’s father had been tried by the
British for leading Mau Mau freedom fighters, most of them Kikuyu, whose
rebellion in the 1950s precipitated Kenya’s independence. (Mungiki
traces its origin to these guerrillas.) The court had no sound evidence
against the elder Kenyatta, who denied any connection to Mau Mau. He was
convicted anyway. Now his son was facing eerily similar accusations.
For many Kenyans, the trial felt like a return to colonialism. Indeed,
after the I.C.C. defendants were named, they came to be known in Kenya
as the Ocampo Six, a reference to the Kapenguria Six, the group of
suspects that included Jomo Kenyatta.
Uhuru
Kenyatta knew he could portray his trial as a heroic struggle — but only
if he upstaged Moreno-Ocampo in the cross-examination, which was being
broadcast live on Kenyan television.
For his own
part, Moreno-Ocampo had debated whether to question Kenyatta himself. He
had never interrogated a witness in the Hague courtroom. He decided to
go ahead only days before the hearing. “I could not delegate,” he told
me: The case was too important. His preparations were bafflingly scant.
When I asked how long he took to learn about Mungiki, the crux of the
case, Moreno-Ocampo replied breezily: “Me? Two hours.” His staff was
worried but knew protest was pointless.
As
Moreno-Ocampo rose to begin the questioning, Kenyatta’s face stiffened.
The prosecutor hadn’t been speaking long, however, when his team, next
to him in the prosecution box, sensed something was wrong. Their boss
was uncharacteristically awkward and hesitant. His queries were aimless.
Kenyatta fended him off at every turn. He blamed Raila Odinga for the
postelection violence and wedged in righteous speeches. “Ultimately,
violence does not help any particular situation, whether you are
aggrieved or not,” he said.
Some members of
Moreno-Ocampo’s team grew nervous. One member put his hands to his face;
another shifted in her chair. This is just embarrassing, one thought.
At one point Moreno-Ocampo, seeming desperate for the defendant’s help,
asked: “So you have no information about the violence in detail?”
Fifteen
minutes in, Kenyatta, cottoning to Moreno-Ocampo’s lack of preparation,
relaxed in the stand. After Moreno-Ocampo asked a particularly ill
phrased question, a wry smirk overtook the defendant’s face. Looking at
the judges, he said, coolly, “I think the prosecutor does not understand
our system.”
Moreno-Ocampo gained his footing
halfway through the 45-minute session, when he asked about the cash
payments Kenyatta had reportedly made to Mungiki. Kenyatta scoffed, but
then overstepped, saying: “I wish I did have that amount of money.”
Moreno-Ocampo
knew this was preposterous: Kenyatta is among the wealthiest men in
Africa. He had an opening. “Can you describe to the court the amount of
your patrimony?” Moreno-Ocampo asked.
Kenyatta chuckled and looked at the judges. “I did not understand what he has just asked,” he said.
Moreno-Ocampo,
flustered, repeated the question: “Can you describe to the court the
entirety of your patrimony? How much money you have?” The presiding
judge frowned and told Moreno-Ocampo to move on.
When
I asked Moreno-Ocampo about the cross-examination in Vienna, he
responded tersely. “I took my decision, and I know why I did it,” he
said. “I don’t think it was a big difference.” He commended Kenyatta’s
performance, calling him “courageous” and “great.”
He
never confronted Kenyatta with Maina Njenga’s statements. When I asked
why, Moreno-Ocampo told me it would have been irresponsible. “I didn’t
think I should expose Maina Njenga,” he said. “I cannot protect him.”
There had already been multiple attempts on Njenga’s life. Many
followers had been killed, as had his wife. It was clear that powerful
people wanted him dead.
Though the charges against
Kenyatta were confirmed, he had shown himself to be the defender of
Kenya, its rightful president. Older Kenyans were reminded of the
commanding performance his father gave in a courtroom a half-century
earlier. He officially declared his candidacy after returning from The
Hague. A campaign spokesman said Kenyatta was “anointed by God to lead
the people.” A Nation editorial said he deserved the Nobel Peace Prize
for ending the postelection violence.
The I.C.C. chief prosecutor’s
term is nine years, and in 2012 Moreno-Ocampo left the court. “For me,
it was an honor and a pleasure to serve the Kenyan people,” he said in
his final news conference. The Kenya cases were important to him
personally, “to do justice for the past” and “to be sure that the next
elections are peaceful.”
The presidential election
in March 2013 pitted Kenyatta against Raila Odinga. It was peaceful.
Kenyatta won, with William Ruto as his running mate. It was assumed that
they detested each other — Ruto, a member of the Kalenjin tribe, was
formerly a close ally of Odinga’s and faced almost identical charges at
The Hague as Kenyatta, only for ordering the deaths of Kenyatta’s
tribesmen. But in running together, they had an unbeatable, if hugely
cynical, message: hatred for the I.C.C. and, by extension, the West.
“Kenyatta didn’t have some grand electoral strategy,” a campaign adviser
to Kenyatta’s party, Peter Kagwanja, told me. “Today, if you want to
win an election in Africa, you just have to have the West bash you.”
Kenyatta
invited President Yoweri Museveni of Uganda to speak at his
inauguration. Nine years earlier, Museveni asked the I.C.C. to prosecute
the Lord’s Resistance Army, and the prosecutor’s office had built its
best cases against Joseph Kony and his deputies. (One of them, Dominic
Ongwen, is currently awaiting trial in The Hague.) But in his speech,
Museveni, who was marking his 28th year in power, congratulated Kenyan
voters for rejecting “the blackmail” of the I.C.C., which the West used
“to install leaders of their choice in Africa and eliminate the ones
they do not like.”
Kenyatta and Ruto’s alliance
surprised Moreno-Ocampo. He knew they were smart, but “I never suspected
they were so smart to create the ticket.” Once they won, the Kenya
cases disintegrated. It had emerged that in 2009, the third key witness
against Kenyatta, who claimed to have discussed violence with him
personally, had been tracked down by two Kenyan men in California. They
recorded a video in which he went back on his testimony. After the
election, the prosecutor’s office dropped him. Several months later, the
first two witnesses withdrew from the case. According to the
prosecution, all three men were bribed. Paul Muite, who represents the
first two witnesses, told me he believes this is true. There are now
witness-interference cases pending at The Hague against three Kenyans.
Muite added that even if they were paid off, the witnesses can never
return to Kenya. Once the government “knows you’re a witness, you have
literally signed your death warrant,” he said.
When
countries join the I.C.C., they agree to submit their highest
officials, even their presidents, to prosecution if the occasion arises.
The Kenyan government showed early on it had no intention of meeting
this obligation. At the United Nations, its diplomats lobbied,
unsuccessfully, to have the cases suspended. The Kenyan Parliament voted
to abdicate the court. Requests for information went unanswered. The
attorney general refused to turn over phone, land and asset records of
Kenyatta’s. One man who was investigated (though not charged) by the
I.C.C. for trying to expose witnesses, Dennis Itumbi, now works in
Kenyatta’s office. (Kenyatta’s office did not respond to requests for
comment for this article.)
In
December 2014, the I.C.C. withdrew the charges against Kenyatta. A news
release blamed unreliable witnesses and the Kenyan government’s
obstruction. In response, Kenyatta tweeted: “As they say, one case down,
two more to go.” In April of this year, the cases against Ruto and Sang
were vacated.
The Kenyatta case could technically
be reinitiated, but it’s difficult to see that happening. The
prosecution tried to recruit new Mungiki witnesses but couldn’t. People
who had tried to help the court, like George Kegoro, the Waki Commission
secretary, no longer trust it. Kegoro told me Moreno-Ocampo never
seemed to appreciate the chances he and other Kenyans took. “They put a
lot of people at risk,” he said. “Living as I do here, the best thing is
to keep off someone like Ocampo.”
Moreno-Ocampo now divides
his time between Buenos Aires and New York, where he practices at the
firm Getnick & Getnick. After a decade in the spotlight, he has
disappeared from view. Today it is hard to find anyone working in
international justice to speak well of him. “He rushed into something in
the belief it would give him publicity and credibility,” Cherif
Bassiouni, an international lawyer and one of the drafters of the Rome
Statute, told me of the Kenyatta case. “Instead he created a now almost
impossible situation which has discredited the court.”
Even
at The Hague, I found few people willing to defend Moreno-Ocampo.
“There’s perhaps a risk,” the trial attorney Benjamin Gumpert said,
“when you are concentrating first and foremost on the message a case is
going to send, that more technical considerations, like are we actually
going to convict this person, may feel more subsidiary.”
Moreno-Ocampo
says he did everything he could to convict Kenyatta, but he didn’t
dispute Gumpert’s characterization. The message a case sends, the shadow
of the court — that was the goal. The problem with courts,
Moreno-Ocampo told me, is they “believe the trials are the most
important things. No. The most important thing is the prevention of
crime.” He had set out to prevent future political violence in Kenya,
and in this sense at least, the Kenyatta case was a success. “The
suspect became president. But there was no violence in the elections.”
Kenyatta
doesn’t look at it that way. In a speech to the African Union after his
inauguration, he said, “The West sees no irony in preaching justice to a
people they have disenfranchised, exploited, taxed and brutalized.” His
efforts to banish the I.C.C. from Africa are backed by a growing list
of African leaders. Among the most vocal, aside from Museveni, are the
presidents of Zimbabwe and Rwanda, and, of course, Omar al-Bashir. That
all of these men have been accused of atrocities of their own is not
coincidental. But even President Jacob Zuma of South Africa, which was
once the court’s main advocate in Africa, has joined the chorus.
What
Kenyatta did not mention in his speech is that four of the court’s 18
judges are African, as is almost a fifth of its staff. Moreno-Ocampo’s
successor as chief prosecutor, Fatou Bensouda, is Gambian and has been
trying to mend the court’s relationship with the African Union. In The
Hague, I asked her if she was troubled that almost all her cases concern
Africa.
“No,” Bensouda replied. “I am an African,
and a proud African for that matter. I love my continent dearly. But I
cannot sit here and tell you that I’m not concerned about the trouble
that my continent is in for the past I don’t know how many years. I’m
very troubled by that.”
In Vienna, I told
Moreno-Ocampo about Eric, the man attacked by Mungiki in his home. The
day after the attack, Eric woke up in a Nakuru hospital to find that
half of his left arm had been amputated. His head was slashed. His wife
explained that, while he was being tortured, she and their daughters hid
in a cupboard in the bedroom. Police officers rushed to their home and
took the family to the hospital, where they lived for weeks, because it
was too dangerous to leave.
They traveled across
the country to the home of Eric’s mother, who still supports them. Eric
can’t find work. Hoping for some compensation, he joined the case
against Kenyatta. I asked him what he thought when he learned the case
had been withdrawn. “I have not seen any justice,” he said.
The second time I saw Moreno-Ocampo express remorse was when I told him this.
“It’s
awful,” he said, his face dropping. “I remember a lady in [Kenya] who,
the only hope for her was us. And now I imagine how bad she felt. That I
feel badly about.”
The former lieutenant of
Njenga’s, like many Kenyans I’ve spoken with, says he regrets the
violence but believes it was necessary. The Kikuyu, his tribe, faced a
massacre, he is convinced.
The last time we met, I
asked if he thought Kenyatta was guilty of the I.C.C. charges. He
recounted a meeting he attended in January 2008, in the midst of the
postelection violence, where Kenyatta was the chief guest and Mungiki
were present. In the meeting, Kenyatta was careful never to mention
violence explicitly nor the gang by name. But he collected cash
donations. I asked the former lieutenant if it was possible Kenyatta did
not understand violence was being planned.
“No,” he said, “it is not possible.”
I asked again.
“No,” he repeated. “With capital letters.”
Vendors hawk farm produce to passengers aboard a Usenge
bound bus at Akala market in Siaya County. 
