Open letter to madam Fatou Bensouda


I salute you Madam and belatedly congratulate you for appointment as the Chief Prosecutor of the International Criminal Court. Your appointment is truly a banana skin. You can either redeem the future of the court as an institution or go down the annals of history as the last prosecutor of the court.

As an African from across the waters of River Gambia, you must be cognizant that outside Africa, if you ask ordinary people what they know about the ICC, they will probably think you are talking about the International Cricket Committee or the International Chamber of Commerce.

Without exception, all your clients are African. The witnesses, both defence and prosecution are African. They fly mostly Western airlines, sleep in European hotels and spend millions of Euros while attending a court in Europe. The ICC represents a colossal resource drain from Africa, reminding one of that classic book, “How Europe underdeveloped Africa”. So proudly African is the ICC that even in the wake of untold human crisis in Damascus, Homs and Aleppo, you have not deemed it timely to open what you would call “The Situation in the Arab Republic of Syria”.

Of course you are aware that doing so would have the Arab street demanding that you open an investigation into the Israeli atrocities in Gaza and West Bank. For this geopolitical consideration, the ICC has to remain an exclusive African Affair.

The purpose of my letter Madam Bensouda is about the situation in the Republic of Kenya which is supposed to be proceeding to trial in the next seven months. You have been reported to have complained recently that most witnesses are shy or not confident enough to testify and therefore you have applied to meet them to jog their memories and boost their confidence. When I read that, I felt really sorry for you.

I had written before in this column that all that your evil predecessor Louis Moreno Ocampo was interested in was to see that the Kenyan cases proceed to trial irrespective of whether they are winnable or not. Of course Mr Ocampo knew that the threshold for confirmation of charges was slightly lower than a Kangaroo court and secondly that he would not be in the office when the cases come to trial.

The result? You have inherited a case whose assured end game is Failure with a capital ‘F’. Mr Ocampo tricked you that he had witnesses. What he did not tell you is that he used nothing but dubious conmanship to acquire witnesses at all cost. You are gravely mistaken if you think the reason most of the so called witnesses are shying away from testifying is because of intimidation or bribery as you allege.

My rational analysis is that their conscience is tormenting them. They knew deep down their hearts, that they were used by Mr Ocampo to fix innocent people. They also know that these sham trials are not helpful to peace and reconciliation in their motherland, more so at this time when the country is gearing for another election.

What is most intriguing is that until now, Ocampo had informed the world that all the witnesses were safe outside Kenya. In fact the only person who appears to have the GPRS coordinates for the witness locations is one Prof Makau Mutua, an ICC consultant even listed on your website, who frequently reveals their names and locations in his weekly newspaper column. When you complain about witness tampering, we wonder whether you are referring to Mutua, the only man to have confessed access to or knowledge of the witness locations in their overseas havens.

The other secret that your predecessor kept to himself is that he overwhelmingly relied on the so called intermediaries to investigate on his behalf. You are well aware that even the ICC judges, in the Lubanga Dyilo ruling, expressed outright indignation at the use of intermediaries in carrying out investigations.

Now, madam, there are intermediaries and Kenyan ‘intermediaries’. Why do I say this? I will cite just two cases to illustrate this. It is an open secret that among the authorities that Ocampo heavily relied on is the report of the Kenya National Commission on Human Rights (KNCHR). At the time of writing the report, the vice chairman of the KHCHR was one Omar Hassan Omar, a man who was accused in the Kenyan media by then potential witnesses of ‘assisting’ them in their evidence.

Well, there is nothing wrong in doing so. The only problem is that Mr Omar is still a vice-chairman, this time of the ‘Friends of Raila’ (FORA) campaign outfit. FORA, for your information Madam is the official campaign team for one of the candidates for the Kenyan presidential election expected in the next six months.

Mr Omar is also seeking to be the senator of the County of Mombasa on the ticket of the Orange Democratic Movement, one of the parties participating in the Kenyan election. It is illuminating that within the Kenyan context, one can hop, step and jump from being the vice chairman of a statutory human rights body to the vice chairman of a presidential campaign team without as much as batting an eyelid. The two titles can be used almost interchangeably. That is Kenya for you, Ms Bensouda.

The second case is even more glaring; an embodiment of real impunity if there was one. In early 2010, I attended an ‘outreach and sensitization’ workshop at Kenya’s Nairobi Club. I was not officially invited to the workshop and I was in fact denied an opportunity to speak at the forum even after begging to be allowed to do so.

In the workshop were officers from the Office of the Prosecutor. They were in the country to conduct ‘investigations’ in the Kenyan situation. All this is perfectly in order. The only problem is that the host and convenor of the workshop was one Wambugu Ngunjiri of Change Associates. The forum was addressed by among others Paul Muite, Ms Muthoni Wanyeki of the Kenya Human Rights Commission and Mr Njonjo Mue alongside the ICC investigators.

Now, there is nothing wrong with all these. The only problem is that today, the host and convenor of the workshop, Mr Ngunjiri, has since declared that he is a campaigner and supporter of Mr Raila Odinga, a presidential candidate in the forthcoming elections.

These two instances should call for serious introspection from you. You ought to smell the coffee. My analysis is that you could be genuine in wanting to have a logical conclusion of the Kenyan cases. What you may not know is that the Kenyan cases are mere cogs in the Kenyan political web of intrigue. Unfortunately, your predecessor Mr Ocampo not only knew that but actually designed it that way.

I may not know anything about the Kenyan witnesses whom you are complaining about but I know about two potential witnesses whose plight you should be seized of immediately. One of them, Mr Tony Gachoka has approached your office volunteering to assist you with evidence that may help your own understanding of the Kenyan situation. Information in the Kenyan media points to reluctance, or even refusal by your office to grant Mr Gachoka an opportunity to tell you what he knows.

The information he claims to have appears to have been gathered not when Mr Gachoka was working as a trader in the Kenyan thriving second hand goods market, but when he was working as a senior civil servant in the government of Kenya. Not only has the Government of The Netherlands denied him a visa to the Hague in contradiction of established international norms including the Geneva convention and the United Nations Charter on Human Rights, but also European Union member countries especially the United Kingdom and Germany have made public comments which clearly show they have a hidden agenda in Kenyan politics.

These comments appeared like refrains from the cue by the choir leader, Secretary of State Hillary Clinton from the United States which is not even a signatory to the Rome Statute!

The second potential witness is Mr Miguna Miguna, another former senior servant. He has said publicly that he has information that does not appear to be currently within the ambit of your office and the court as far as the situation in the Republic of Kenya is concerned. If you are to be seen to be helping the Kenyan cases, I would urge you to arrange for urgent meetings with the two senior Kenyans and if necessary place them under witness protection.

In conclusion, I would like to assure you that all Kenyan people, not least myself are against the culture of impunity that we have witnessed in this country for decades. Where we differ with your office and more so with your predecessor is the use of the Kenyan cases to achieve a predetermined political outcome. I still have faith that under your leadership, Jesus and Barnabas will switch the positions in which they were erroneously and mischievously placed by Louis Moreno Ocampo.

The writer is a political and public policy analyst Twitter: @HonMosesKuria; Facebook: Moses Kuria

11 Replies to “Open letter to madam Fatou Bensouda”

  1. Lacking objectivity and full of emotions……May help u get a job at the TNA offices..A man got to put food on the table,we understand.

    1. Being abusive wont transform a lie into a truth, even the least educated person in Kenya knows there is something ”FISHY” going on at the ICC. We shall never be imposed on a leader to be used by the Wazungus for there selfish needs,dont be intimidated by ”clueless” people as MM has put it in his book,read, read then open that mouth, the truth is coming out faster than we thought, well done Kuria.

  2. The ICC will stroke the embers that will ignite the true form of impunity, when they consolidate the real antagonists in their western cities to trample democratic space in a developing republic…or they will swallow a bitter pill and accept peoples choice.

  3. Brother Moses Kuria you have done us proud. However, there are certain aspects that still need to be laid before Madam Bensouda. The problem facing brothers Tony Gachoka and Miguna Miguna might not be the Netherlands, but tribal interests esle where. Of course, you must take in to account that our political behavior can hardly be understood by foreigners. And moreso, when tribal loyalty is at play.

    While Netherlands is largely to blame, that they have been fed with twisted information by partisan folks like Prof. Makua and our fellows even in the Hague, must be brought in to focus. Our government too must set clear terms for its continued engagement with ICC. That completely capture our national interests. We should not allow ourselves to be forced to co-operate with an institution that seems to demean and insult us. Even the most powerful country on earth, USA, allows Iranian president to attend UN meetings in New York without any hinderance at all. And even knowing pretty well that he would make hostile pronouncements on its soil!

    Perhaps, if ICC and Netherlands are not willing to allow free flow of our cases, including introduction of new evidence. That seemingly points to known real commanders, including commander in chief of PEV, we should review our relationship with them. Throwing out Dutch diplomats for insulting our national pride is increasingly becoming a possibility. We are the ones who refered our cases to ICC and no one should pretend to have forced us to do so. We should make a swift stop to a situation that seems not offer supposed justice but mere political meandering. If justice is not guaranteed and is not seen to be so, Kenya has no business entertaining such empty enterprise at all.

    The treatment metted out to brother Tony Gachoka by the Dutch embassy, while armed with all necessary government consents, is totally unacceptable. It insults all decent established international norms. That US secretary of state would fly in to the country and mischieviously meet chief justice behind closed doors, is a situation that alarms us all. While chief justice maintains that interference was not the issue, it can not be genuinely so. That uncle sam was assuring our highest judicial officer of all support in rolling out justice favorable to certain quarters cant be ignored. All these street demonstrations by our judicial officers, led by no other than the chief justice himself, point to a very disturbing situation indeed. What prof. Makua and other purported civil society leaders have been writing about our government has all markings of new energized assault on our leadership.

  4. well done Mr. kuria,its time the whole truth was told because it seems there are some sacred cows that should not be touched n this is what we call IMPUNITY. If anyone has evidence of wateva nature it should be tabled. Madam prosecutor needs to show that hers is a course for justice.

  5. The problem with implicating Raila is you’ll eventually implicate Kibaki… That is the fact of the matter.
    Can anyone tell me how Kenya will be if these two are taken out to court? I shudder to think… They can be eased out through elections but not through courts

    1. @Boiyot : You are misleading people for alot of nothing. President Kibaki never called for murderous mass action! He was actually a victim of it. He won election only to be confronted by faked election theft. His swearing in to stop greedy fellows from precipitating constitutional crisis has been mischieviously reduced to confirmation of that false theft. But no serious person would have acted differently even in another country. Even retired president Moi acted pretty quickly when Kibaki and Raila attempted to obtain court orders to stop his swearing in 1997! Its extreme duty of every winning candidate to take swift measures to nib in bud any possible constitutional void in the offing.

      Secondly, if you have any incriminating evidence against president Kibaki, you are free to bring it up. You should not pretend that any clear evidence on Raila’s participation in those chaos, would envelope others without giving any reasons. That in itself, is an empty blackmail that can never ever insulate anyone. After all, Raila’s involvement is a matter of public knowledge. The fact that only his cronies were in the forefront in giving doctored reports and even outright falsehoods to former prosecutor, who incidentally, had an “O” in his name like most of our celebrated propagandists, doesnt change anything at all. And moreso, when Raila’s former closest aides come up with concrete insider irrifutable evidence.

      And if the two were to be taken out of the scene, constitution is there to guide Kenyans. Raila is not even anywhere close to succession chain despite his illogical pretences to the contrary. There is VP, Speaker of the national assembly, Foreign affairs minister, finance guy, chief of general staff and soforth. Your pretentious idol doesnt come anywhere close to the power. His is pacification job, simply to cut down maddening pugnacity! But you see, you guys have been taken in by empty propaganda that you dream Kenya is only president and pm. Kenya can even live without all the current leaders. Why cant you ask yourself where the country was before they appeared on the scene in the first place? Your narrow line of thinking is actually the sort that can easily cause problems!

    2. Hogwash! These two guys were directly responsible for all the violence. They were the presidential candidates. In other parts of the world like Congo, they take suspects to Hague on the basis of their declared leadership positions. They have NEVER taken any “purported” auxiliary leader. It makes no sense. These two guys had the mandate from the people to stop or propagate the violence. They are responsible to this day.

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