Time to pursue other options in Kenya ICC cases


Over the last 12 months most Kenyans who’re detached from the political and legal battle going on at the International Criminal Court between the Uhuru, Ruto and Sang defence teams, and Madam Bensouda’s prosecution office, are gradually waking up to the fact that the ICC cases may not be how the victims of the 2007-8 Post Election Violence get justice.

First it is gradually becoming clear that the ICC Prosecutor’s Office is not the International Criminal Court, a distinction that got lost when Luis Moreno Ocampo as prosecutor, was always talking about how he will sort out Kenya’s impunity problems once and for all. This distinction is very important because it means that the same way we do not believe everything defence lawyers say unless the court rules that way, we cannot take as a gospel truth everything the ICC Prosecutor says.

We now accept that Ocampo lied to us when he publicly told the world that the Kenyan situation was an open and shut case, and that his office was satisfied they had enough evidence to convince the court of the guilt of those he believed were most responsible for the heinous crimes of 2007-8. We know that the witnesses he said were credible, and had been taken into foreign countries for their own safety, are no longer safe. Some are recanting their testimonies, others have been compromised, and some as we hear, could even be dead. In fact, today we now know that despite assurances from Ocampo that all evidence was safe, the prosecutor might need to get more evidence, and call new witnesses.

Clearly, unlike what Ocampo said, Bensouda today does not have an open and shut case.

Then there is the fact that there is no legal precedent for the situation the ICC and the international community finds itself in. The first prosecutor, of his own accord, asked and was allowed to commence investigations and institute criminal proceedings which he justified as being on behalf of victims of crimes against humanity in a member state whose judicial system was unable to deal with such cases.

As the cases proceeded this same member state went on to reform its judiciary, pass one of the best constitutions in the modern world, and then ironically, to democratically elect two of the three people the prosecutor has charged before the court, as president and deputy president!

Then, either due to the defence’s public relations, or because it is fact, it starts looking like the first ICC Prosecutor decided to play politics with a case where he did not have enough evidence, maybe after getting carried away with the international public profile the cases gave him. It now seems he might have taken a half-baked case to court, which one of the ICC judges actually suggested as she excused herself from the cases.

It is now gradually starting to look like the second prosecutor is grappling with a situation where international expectations have been set very high, but her cases are falling apart and there is no dignified way out of the situation.

Meanwhile Kenya, the member state in question here, has turned 50 years old.

As the ICC Prosecutor untangles herself, the nation must move on and maybe we might want to consider extra judicial solutions to deliver justice for the victims of particularly the 2007-8 PEV, as we use the TJRC mechanisms for other past injustices.

I am especially convinced of the need to take this direction after watching the on-going situation where some Mau Mau survivors have successfully sued the British government. I have noted that no one has instigated criminal cases against the British government, despite the fact that the survivors have proven that crimes against humanity were committed against them. What the Mau Mau survivors want is compensation, and I think we would find that justice for the 2007-8 PEV victims would take a similar angle.

In fact when I compare the Mau Mau situation with the ICC situation, I think the focus of the ICC towards wanting to punish the suspected indirect perpetrators is way off target and I think the court must accept this is not about the victims. It looks more and more like we have become unwilling pawns in international political wars that are of no benefit especially to the direct victims of the 2007-8 PEV.

So, with all due respect to sections of the Kenyan civil society, members of the legal profession and the international community, maybe it’s high time we accept there is no precedent to this situation, seek compensation for the victims of the 2007-8 PEV, and now set up laws to punish any perpetrators should the PEV ever re-occur. Maybe this is the only way we will make sure that we do not destroy the forest, as we try to save the trees.

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