ICC: Let 10 guilty escape than one innocent suffer


The International Criminal Court has indefinitely adjourned Uhuru Kenyatta’s trial. This looks like the first step in a process that will ultimately lead to a permanent termination of this case.

But the victim’s lawyer would prefer that the case continues. In his application filed in court on 13th January 2014 Fergal Gaynor tells the court that adjourning the case would ‘delay the realization of the victim’s right to know the truth of the crimes committed against them; to have those responsible for those crimes held accountable; and to receive just reparation for the harm they have suffered’.

Mr Gaynor filed this application despite being aware that Madame Bensouda has told the court that she does not have enough evidence to sustain a trial. However he would still rather the case was not adjourned, this notwithstanding.

Mr Gaynor’s arguments are not convincing. He argues that an adjournment will delay his clients (the victims’) knowing the truth of the crimes committed against them; though he knows that proceeding with an unsound case will not get his clients this truth. He states that an adjournment will affect how long it will take to hold those responsible accountable; though he knows that continuing with a faulty case will make it even more difficult to do so.

He speaks of a delay in getting reparations to his clients, though he knows that if the prosecutor’s evidence cannot sustain trial there is no hope for reparations.

So why does he still want to go to trial despite all these challenges?

A simple mind might conclude that he is thinking about the proverbial 15 minutes of fame he will get whilst cross-examining an incumbent head of state, in front of a live audience of the entire world; and what that would do to an international lawyer’s career. However I am more inclined to believe that Mr Gaynor has fallen victim to the popular argument that Uhuru Kenyatta’s case must continue, because if it collapses then the victims that were affected will have no hope of ever getting justice.

This argument is very powerful, emotionally; especially in a country where PEV victims have historically never seen justice done. It also even sounds sensible the first time you hear it, because it captures the plight of victims handsomely, and then relates their plight to the success of the ICC cases. However when one considers its merits carefully, it becomes clear it is based on faulty reasoning, and is thus a fallacy.

Actually it is a logical fallacy; what philosophers specifically refer to as a ‘Post hoc’ logical fallacy. ‘Post hoc’ is the shortened version of the Latin phrase “post hoc ergo propter hoc” that translates as “after this, therefore because of this”. ‘Post hoc’ means that when one thing happens it causes another. A post hoc fallacy is therefore where a conclusion is based solely on the order of events, without taking into account other factors or facts that rule out any connection between the events.

The other facts are that after the 2007 PEV happened the political realities of the day did not allow for a local solution. Unfortunately these realities were then transferred to the ICC, such that an equal number of suspects from PNU and ODM had to be charged. Judicial allowances were then made to confirm cases that retained the political equation, especially because another election was round the corner. Unfortunately this is not tenable at trial and the Prosecutor has had to finally admit that she actually does not have sufficient evidence against Uhuru Kenyatta.

These facts raise reasonable doubt that supports a case for Uhuru Kenyatta’s innocence. Unfortunately political realities still prevail though in a different format from before the elections. In addition some of us are still unable to give Uhuru Kenyatta benefit of the doubt despite now knowing that Ocampo did not have enough evidence on him in the first place; primarily because we would have preferred someone else as President. Politics continues to interfere with this case, but a time has come when politics must be shed, for justice to prevail.

As the ICC prepares for the status conference on 5th February 2014, I know there will be many voices telling them that terminating the case is bad for international justice. However my hope is that they will go back to the words of Sir William Blackstone, an eminent English Judge, Law Professor and Politician, and the author of ‘Commentaries on the Laws of England’. In 1765 Sir Blackstone said ‘it is better for 10 guilty persons to escape, than for one innocent person to suffer’.

If they do not know Sir Blackstone let them pay heed to his contemporary, John Adams; Second President of America; Father of the Sixth President of America; author of ‘Essay on the Canon and Feudal Law’; who said that ‘it is more important that innocence be protected, than it is that guilt be punished’.

(Wambugu is the Executive Director of the Change Associates Trust)

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