Why the ICC judges dealt Ocampo a major blow

BY KIBE MUNGAI                                                                                                

Last Tuesday’s majority decision of the Pre-trial Chamber II of the International Criminal Court to issue summonses against the Ocampo Six is anything but music to ICC Prosecutor Luis Moreno Ocampo and his Kenyan supporters and fans who may never get to read and understand the significance of the ruling. 

Without a doubt, serious crimes under Kenyan law and international law were committed between December 2007 and January, 2008 but the ICC Prosecutor set about his job in a politically-motivated way whose consequences are discernible in the majority decision of the ICC Chamber II.

It should be remembered that before and after 31st March, 2010 when the ICC Chamber granted the Prosecutor’s request to commence an investigation into the post election violence (PEV) in Kenya he often said that he intended to prosecute a number of persons from both the ODM and PNU side of the Kenya’s political divide.  By mid-2010 Ocampo had indicated that the list of his suspects will include three pro-ODM and three pro-PNU Kenyans.  In early December, 2010, Ocampo announced in Nairobi that – despite the fact that investigations into PEV were incomplete – his office will not prosecute more than the six Kenyans he had already identified and was planning to name.

This critical background is necessary to bear in mind for two reasons.  First the identification of the six suspects was not a direct result of evidence.  On the contrary Ocampo intentionally sought to gather evidence to punish some people from ODM and PNU sides to make an example out of Kenya to the world and presumably to prevent recurrence of the PEV in the 2012 general elections.  Secondly, Ocampo’s vow that no other persons will be charged at the ICC was not only a gross abuse of power but an indirect exoneration of other persons that many Kenyans believe they as much, if not more, responsibility for the atrocities committed in Kenya after the 2007 general election.

When the names of the suspects and the charges against them were announced on 15th December 2010, I took the position that Ocampo’s politically motivated charges will be hard to prove in Court.  Besides the fact that the identification of the suspects was politically driven, the choice of offences was selective and the motive was rather fictional and oblique.  The majority decision of the ICC chamber vindicates my skepticism about Ocampo’s intentions and modus operandi in several ways.

Ocampo’s central thesis is more political than legal and will ultimately prove to be his undoing in the case against the six Kenyans.  On one hand William Ruto, Henry Kosgey and Joshua arap Sang are accused of having coordinated a series of actors and institutions to establish a network whose goals were firstly, to gain power in the Rift Valley Province and ultimately in the Republic of Kenya.  The second purpose was to punish and expel from the Rift Valley those perceived to support the PNU.  Two issues are notable.  First, whereas Ruto and Kosgey were senior leaders in ODM which was competing for power with PNU, Ocampo charges accuse them of creating a network outside ODM which effectively leaves ODM out of the ICC equation.  Secondly, any Kenyan imbecile alive during the PEV knows that there was no competition for power in the Rift Valley.  The truth of God is that Ruto and his group sought to install Raila Odinga – the ODM presidential candidate – as Kenya’s chief executive.

The other hand of Moreno’s thesis relates to PNU.  The charge here is that in response to the Ruto, Kosgey and Sang’s planned attacks on PNU supporters, Francis Muthaura, Uhuru Kenyatta and Mohammed Hussein Ali developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power.  Thus the three planned the killing of ODM supporters in Nairobi and Kisumu through excessive force by the Police and they also co-ordinated Mungiki-led attacks in Nakuru and Naivasha.  The interesting bit here is that whereas Muthaura, Uhuru and Ali were supposed to be responding to actions of Ruto’s network rather than ODM-inspired mass action agenda, Moreno basically accused them of killing ODM Luo and Luhya supporters as opposed to the ODM Kalenjin supporters on whose behalf the network was acting.

Given this backdrop I am not surprised that Moreno scored rather poorly before the ICC Chamber in at least five respects.  First, the two judges found that Ocampo did not present sufficient evidence to establish reasonable grounds to believe that Ruto and his group committed acts of torture as alleged in Count 3 which was consequently dismissed.  Secondly, the judges rejected Ocampo’s arguments that the attacks in Nakuru and Naivasha occurred pursuant to an organised State policy.

Thirdly, the judges found that the evidence presented by Ocampo did not provide reasonable grounds to believe that the events which took place in Kisumu and/or Kibera can be attributed to Muthaura, Kenyatta and/or Ali and so the charges were dropped.  Fourthly, the judges found that Ocampo failed to provide evidence to support his allegation that rape was committed as part of the attack in Naivasha.  Finally, the judges rejected Ocampo’s request for Uhuru, Muthaura and Ali not to have contact with other suspects personally, by telephone, in writing or through intermediaries.

Evidently, in round one of the trial Ocampo scored poorer against Uhuru’s group than against Ruto’s group despite the fact that the suspects had no right to challenge his case.  At the next stage of the prosecution Ocampo will face a more daunting task.  With allegations about alleged crimes in Kibera and Kisumu having been dropped, Ocampo will stand or fall depending on the judges’ take on the alleged atrocities in Nakuru and Naivasha.  I believe Ocampo will meet his waterloo in either or both Nakuru and Naivasha because evidence will let down his politically motivated charges.

According to the Waki Report, 278 Luos, 268 Kikuyus and 158 Kalenjins were killed during the PEV.  There were 119 unidentified bodies, the majority in Uasin Gishu, Nakuru and Trans Nzoia Counties where Kikuyus were the main victims of the PEV.  In Naivasha 50 people were killed while in Nakuru 213 people were killed.  Since Naivasha is in the greater Nakuru District and indeed is part of Nakuru County, in today’s parlance this means that Nakuru County with 263 people killed was the most affected followed by Uasin Gishu County with 230 fatalities.

Whereas the Waki Report does not provide the ethnic breakdown of deaths in Nakuru, anecdotal evidence shows that more PNU supporters than ODM supporters/Ruto’s network supporters died in the violence and even more PNU supporters were displaced in Nakuru County.  I can hardly wait to see how in a County where more Kikuyus or PNU supporters were killed and displaced, Ocampo will prove that the PNU trio were the aggressors.  Who then will take responsibility for the atrocities committed in Nakuru County now that Ruto and his network were not charged with them?  What does ICC justice have to offer to the majority of victims in Nakuru County now than it has embraced the justice for the minority?  If ODM as an institution seeking power in the 2007 general election is innocent as Ocampo implies, is any other organisation really guilty of PEV atrocities?  Is Ocampo really acting in the best interests of victims? 

(Mr Mungai is a Nairobi based lawyer)

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