Why the ICC cases cannot be tried in Kenya

By MAKAU MUTUA
Posted  Saturday, July 20  2013 at  16:55

 

Perish the thought – unless you are smoking something. The Hague cases against President Uhuru Kenyatta and DP William Ruto won’t be tried in Kenya, or Tanzania. Nada – never.

I know it’s Law 101 that justice must not only be done, but must be seen to be done.

The accused normally face justice in the jurisdiction of the crime. Victims confront their tormentors “at home” – at the scene of the crime. But that’s for regular murders and assorted felonies. It’s not for the most egregious heinous crimes – like crimes against humanity.

Justice would be extinguished if Mr Kenyatta and Mr Ruto are tried in East Africa. I will tell you what – you don’t pull a lion’s tail in its own lair.

Voted overwhelmingly

No one should have been shocked that judges at the International Criminal Court voted overwhelmingly to reject staging The Hague trials in Kenya or Tanzania. Frankly, I thought the Trial Chamber was out of its mind to even contemplate – let alone recommend – that the trials be conducted in Kenya.

Whew – the Trial Chamber may be in desperate need of a little education on how “justice” works in our neck of the woods. Trying the duo in Kenya is like asking an emaciated, chang’aa-ravaged addict from Murang’a – or Kitui – to duke it out with boxer Mike “Iron” Tyson at his prime.

The fight would be over before the referee blew the opening whistle. Don’t believe the biblical fable – tall-tale – about David over Goliath.

Let me break it down for you. The purpose of a criminal trial isn’t to amuse the public. ICC cases are only initiated when the court believes the crime was “probably” committed. That’s not all – the court must believe that the prosecution has a fair shot at making the charges stick.

There must be “reasonable grounds” to justify the issuance of summons or an arrest warrant.

The prosecution must further show “sufficient evidence” to warrant the confirmation of charges. These hurdles are key to ensuring a fair trial. Neither the prosecution, nor the defence, should be put in a position where it is impossible to prepare for trial.
I have three reasons trying the cases in Kenya would have sank them. First, it’s not a secret that The Hague trials sent former President Mwai Kibaki into a tizzy. He spent the twilight of his regime trying to save the ICC targets – the “Ocampo Six” suspects and then the “Ocampo Four” indictees – from damnation.

Mr Kibaki sent former Vice-President Kalonzo Musyoka on an ill-fated African Union “shuttle diplomacy” to sabotage the ICC.

The Kenya Government’s admissibility challenges fell flat before the court. Mr Kibaki breathed a sigh of relief when ICC Prosecutor let go of Mr Francis Muthaura, but was still miffed Mr Uhuru Kenyatta was in the vice of the ICC.

There’s no doubt the Kibaki state was determined to save Mr Kenyatta from The Hague at all costs. AG Githu Muigai seemed to have been put on the ball to frustrate the ICC. ICC Prosecutor, the indomitable Fatou Bensouda, has repeatedly accused the “sweet-tongued” Muigai of devious sabotage.

She’s called him the legal face of Kenya’s lack of cooperation with the court. He has – by his own public admission – refused to turn over certain documents deemed crucial by the prosecution. Nor is there any reasonable doubt that Mr Muigai is at the centre of legal strategies by the state at the AU and the UN Security Council to upend the trials. He’s the chief government legal adviser.

That’s why the ICC judges were right not to send the trials back to Kenya, which they must consider a “hostile state”. It stands to reason that a government that has expended so much diplomatic capital – and treasure – to obstruct justice can’t be trusted to host the trial.

Unpopularity with Kenyans

I am sure the judges felt they would be under surveillance, if not direct intimidation.

I believe Jubilee bloviators and goons would’ve been unleashed to lay siege on the proceedings to prove their “unpopularity” with Kenyans.

Neither could the judges trust Tanzania as host. It’s clear President Jakaya Kikwete has been more concerned with pleasing Mr Kenyatta than seeking justice for victims. The judges can see a trap when they smell one.

Second, you’d be a fool to believe that witnesses and other Kenyans on the prosecution’s side would confront Mr Kenyatta and Mr Ruto on their home turf. The Chinese have a saying – “the peacock that raises its head gets shot”. The duo has rabid supporters and the machinery of the state under total command.

Only if you had a death wish – or were extremely foolish – would you take the stand against them in Nairobi. The ICC has alleged disappearances, bribery, intimidation, recantation, and even killings, of witnesses.

This is bone-chilling stuff. I believe the prosecution has given this information to the judges. There’s no way – nyet – the judges could move the trials back to Kenya with this dossier.

Finally, the ICC doesn’t want to be seen as a wuss – a cowardly gutless wimp.

It has already embarrassingly conceded too much to Mr Ruto when it ruled that he didn’t – contrary to its own statute – have to be physically present for all the sessions of the trial. This was a total travesty.

All defendants – whatever their station – must be treated equally. No special favours.

One more ruling like that and the ICC will become a laughing stock. The ICC will rise or fall on the Kenyan cases. That’s why it has to stand its ground.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.