Former International Criminal Court's chief prosecutor Luis Moreno-Ocampo (left) speaks with his successor Ms Fatou Bensouda after her swearing-in ceremony as the new chief prosecutor in The Hague, on June 15, 2012. PHOTO | AFP
The court relied on work done by human rights bodies as State refused to cooperate.Almost from the beginning when the then Prosecutor Luis Moreno-Ocampo received the “Waki List” from the chief mediator on the Kenya post-election crisis, it started becoming clear the ICC was ill-equipped to manage the cases.
The
Hague-based court was coming up against defendants with the resources
to hire the best lawyers, and backed by State machinery with the
capacity to obstruct investigations by giving the ICC the legal
run-around.
The ICC has little in
established investigative machinery of its own. It depends on the
cooperation of member states to use their own police forces to carry out
some of the investigations on the ground, collect evidence, and locate
and produce witnesses.
Where the
State is not willing to cooperate, then everything can stall. This is
evident by the frequency with which Mr Ocampo and his successor, Ms
Fatou Bensouda, cited the Kenya government in court for obstruction.
As
the Kenyan cases progressed, it became obvious that the ICC had done
very little in terms of sending out detectives to the killing fields to
collect evidence and locate and take statements from witnesses.
Instead,
it relied on preliminary work down by bodies such as the Kenya Human
Rights Commission and the Kenya National Commission on Human Rights
(KNCHR), whose reports also appear to have provided much of the evidence
given to the Justice Philip Waki’s commission of inquiry into
post-election violence.
There is no
doubt that in the face of government lethargy or outright sabotage, key
figures in the human rights movement — such as Mr Maina Kiai, Mr Omar
Hassan Omar, now Senator for Mombasa, and Florence Simbiri Jaoko, then
all with the statutory KNCHR and others such as Prof Makau Mutua, Ms
Muthoni Wanyeki and Mr George Kegoro of the Civil Society Kenya Human
Rights Commission — did a lot of work in bringing to the world’s
attention the atrocities being carried out in Kenya.
INITIAL WORK
They
sent out teams to the ground, who did much of the early work in
documenting the killings and forced displacements, identifying
perpetrators, interviewing victims and locating and sheltering
witnesses.
Their early efforts were
invaluable to the Waki Commission investigations that did not get
running until August 2008 when much of the evidence was already
destroyed.
The information gathered
by the local human rights groups was also of immense value to the ICC
teams that took up the cases after the Kenya government failed to
establish an independent tribunal into the post-election violence.
That is why the UhuRuto presidential campaign was from the very beginning viscerally opposed to civil society.
It devoted an entire website to “outing” key individuals in the human rights movements.
It nick-named them “evil society” and tried to establish tenuous links to international development agencies.
The
UhuRuto team blamed civil society and presumed links to the Opposition
and to the western lobby groups for the indictment by the ICC.
WRONG TEAM
However
enthusiastic and committed the human rights activists were documenting
the post-election violence, the teams they sent to the ground were not
trained detectives and investigators.
There
was also an inherent weakness in that some of the activists,
reflexively anti-establishment, might have been more focused on nailing
specific individuals rather than putting together evidence that could
stand up in court.
That some of them also had political ambitions and links of their own could also have muddied the waters.
If
it is true that the suspects were largely drawn from the initial
groundwork by civil society group, then the cases were flawed from the
beginning, especially as it seems that ICC did not collect its own fresh
evidence.
The weaknesses in the case
were evident from the very beginning in March 2010, but the pre-trial
hearings presided over by Judge Ekaterina Trendafilova that committed
the Ocampo Six to formal investigation gave the prosecution much leeway
at that stage.
The case then was
considered unique because it was the first time the ICC had sought to
prosecute a case on its own volition without being referred by a
member-state.
Mr Ocampo is a great, inventive showman: even though he did not have much of a case, he bristled with confidence and bluster.
In
the view of some analysts, he constructed a brilliant legal gamble,
which he thought would cure his lack of credible evidence.
TWO CAMPS
He
divided his six suspects into two opposing cases, one for the Party of
National Unity suspects — former Head of Public Service Francis
Muthaura, former police boss Gen Hussein Ali and Mr Uhuru Kenyatta — and
another made up of those allied to the Orange Democratic Movement Party
— Mr William Ruto, Mr Henry Kosgey and radio presenter, Joshua arap
Sang.
The two cases were presented to the same court, presided over by Judge Trandafilova.
Perhaps,
Mr Ocampo saw that the PNU and ODM suspects would try to save
themselves by implicating and providing evidence against each other,
thereby getting the cases to, as it were, “cross-prosecute” themselves.
And he had good reason to hope for this: Both parties had already reported each other to the ICC.
What
Mr Ocampo could not have foreseen was the speed with which the parties
patched up their differences to present a united front against the ICC.
As
the case progressed, a series of successive rulings by the Trial Court
and various Appeal Chambers were seen, to the defence frustration, to
have been accommodative to weaknesses in the prosecution case.
This
leeway was apparently allowed because of Ms Bensouda’s complaints about
lack of cooperation by the Kenya government in locating witnesses and
securing evidence.
She also claimed
that a large number of the witnesses, who were steadily withdrawing,
were succumbing to threats, intimidation and bribery.
This
final verdict delivered on Tuesday freeing the last two suspects
alluded to the spectre of “troubling incidence of witness interference
and intolerable political meddling”. That itself hangs a shadow over Mr
Sang and Mr Ruto because it emphasises that they were not declared “not
guilty”, but rather were set free because the prosecution was unable to
present evidence due to external factors.
The
same might also apply to President Kenyatta who was discharged early
last year after Ms Bensouda was given an ultimatum by the judges to
either present proper evidence or withdraw the case.
NO EVIDENCE
The
three other suspects, Mr Muthaura, Mr Kosgey, Gen Ali had been freed
before being committed to trial, again for lack of evidence.
While
all the cases collapsed because of withdrawal of witnesses, and it is
likely that there was extraneous pressure, it might be germane that the
prosecution did not make specific applications to try and pin down
either the defence or key government figures in meddling with the case.
The ICC, already with a sorry record on convictions, no doubt suffers a bloody nose with collapse of the Kenyan cases.
This
seems to make it a pale in comparison to other international tribunals
such as those responsible for netting war crimes and genocide suspects
in Rwanda, Argentina and the former Yugoslavia.
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