Has the ICC turned into the International Centre of Comedy?



Observing the measly performance of the prosecution at the confirmation of charges hearings in the case of William Ruto, Henry Kosgey and Joshua arap Sang, I was left wondering whether we should not have globally legislated standards of idiocy.

With the likes of Moreno Ocampo in the prowl, we need to have the benchmarks of idiocy so that the world is saved the valuable time we need to solve the problems of hunger, poverty, disasters, hurricane Irene, global warming etc.  I concur fully with defence counsel Kioko Kilukumi at the hearings that the only good thing with Ocampo is creativity.

Which brings me to the most ridiculous allegation that Ocampo makes in the case against Francis Muthaura, Hussein Ali and Uhuru Kenyatta, namely that the symbol of our nationhood, the official residence of our Commander-in-Chief was the mobilisation point for Mungikis, where they were issued with military uniforms and military vehicles.

For the undiscerning, State House has a staff contingent of over 1,000 staff from all the communities of Kenya.  How such a massive undertaking can take place without being noticed by any staffer can only be attributed to Ocampo’s award winning creativity. Among the dates the Mungikis were supposed to have held a guard of honour at State House is December 30, 2007.

It is imperative to note that this is the day that President Kibaki was sworn in.  I was one of the guests at that swearing-in. I was driven to State House in the official vehicle of Hon Martha Karua. At State House I recall meeting so many people including Mwai Kibaki, Uhuru Kenyatta, Francis Muthaura, Peter Kenneth,  Martha Karua etc. With reflection, I am pretty certain that when Ocampo refers to Mungikis in State House he may be referring to me and Peter Kenneth while the military vehicles must be confusion with Martha Karua’s Green Prado that drove me to State House!

In any case, by invoking State House in his theory, the good novelist that is Ocampo has inadvertently changed this case into one involving a state party. I do believe that the competent defence lawyers will raise this issue with the court so that the architecture and conduct of the proceedings can be modified to be in line with cases involving state parties.

I reiterate what I have said in this column for the last one year. Ocampo’s brief is to achieve a certain outcome in Kenya.  His sole mission is to remove some actors from the 2012 General Election so that Raila Odinga can have a very easy win against Raila Odinga.

That is why he ignores such statements by Raila like. “Generals do not go to battlefront” when he was asked in 2008 why he was not on the ground with the protestors. On January 3, 2008 , Raila said on KTN ” What is happening is genocide being perpetrated by a Mungiki gang operating from State House led by  Uhuru Kenyatta.”  For Ocampo to repeat such claims in his case leaves one with no doubt as to where he gets his brief from.

There is also the issue of double standards at the ICC. By the established definition under the Rome Statute, it would mean that those involved in the London riots are also perpetrators of crimes against humanity. There may be some distinctions between the post-electoral violence in Kenya and the London riots, but they are nuances, matters of degree.

One cannot draw a bright line between them.

It will be argued that in any event the British justice system is dealing very aggressively with the London violence, and that as a result the crimes would not be subject to prosecution on the basis of complementarity. The British justice system is ‘willing and able’ to bring those responsible to justice.

But here we encounter another problem with the way the Rome Statute is being applied. The judges at the International Criminal Court have tended to an analysis whereby it is not adequate that perpetrators be tried for any crime in order for complementarity to be addressed.

The theory is that they must be tried for the precise crimes under the Rome Statute. Are any of the teenage hoodlums in London being prosecuted for crimes against humanity? Is Britain failing in its duty to adequately describe the nature of the crimes – and thereby deprive victims of the justice they are entitled to – by labelling the acts using ordinary criminal classifications, such as assault, mischief, theft, arson, vandalism and so on?

Of course we all know that riots in Nairobi and riots in London are not the same thing. Should anyone be surprised that so many of us Africans think the court is focusing its attention unfairly on our beautiful continent?

Finally, I have read that a group of Ocampo’s supporters have threatened to take Pope Benedict to the ICC for the victims of mistreatment by Catholic Priests. Where it comes to my Catholicism, there is no compromise.  If that comes to pass, we will tell Ocampo, in the famous words of Robert Mugabe to keep his Falkland Islands, we keep our Church.

The author is the spokesman of the Party of National Unity. The views expressed herein are his own.

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