Our experience got General Ali off the hook

February 3, 2012 7:57 am


Lawyer Gershom Otachi in his office/CFM
NAIROBI, Kenya, Feb 3 – He is an easy-going lawyer who has maintained a low profile throughout his career. In fact, few journalists who cover court cases would recognise him.

He is a partner at Ogeto, Otachi and Co. Advocates, a law firm that gained prominence after summonses were issued by the International Criminal Court (ICC) on six Kenyans suspected of masterminding the 2008 post election violence.

Today, the name Gershom Otachi is almost a household name after he featured prominently during confirmation of charges hearings in The Hague, Netherlands last year.

Otachi was in the panel of equally distinguished lawyers among them John Philpot (Canadian), Gregory Kehoe (American) and Evans Monari (Kenyan) representing former Police Commissioner Major General (Rtd) Mohammed Hussein Ali who has now been acquitted by ICC judges for lack of sufficient evidence to commit him to trial on crimes against humanity charges. Read Ali’s reaction to ICC ruling here.

But who is this man Otachi?

The 46-year-old father of three has immense experience in international criminal law, having practiced for 17 years at the Rwanda tribunal where he has handled briefs-alongside his law firm partner Kennedy Ogeto – for influential Rwandans accused of genocide.

Coincidentally, Ogeto is among lawyers holding brief for Francis Kirimi Muthaura who was indicted by the ICC on charges of crimes against humanity.

Back to Otachi.

“International law is my passion and area of specialisation,” he said during an exclusive interview conducted in his offices in Nairobi.

Here is the full interview:

Q: It remains a puzzle to many that a suspect facing monumental charges such as the ones Ali was facing at the world’s court, can walk free. What did it take you and your fellow defence counsels to get his charges dismissed?

A: It does take a lot of work. I imagine many Kenyans think that the case was what they saw on television. But really that was just a fraction of the whole case, there is a lot more that went into the case and a lot of it is stuff that is confidential.

These kind of cases are very involving. We had to do a lot of work in terms of investigations, gathering evidence. Ordinarily you will start by analysing the prosecutor’s evidence and trying to see how best to confront it. That in itself can be pretty involving in these kind of cases. And then now the task of countering that evidence, gathering your own evidence and ensure you have evidence that is useful.

Many times you go out there and you meet many people who you’d think have evidence that can be useful. But at the end of the day you find that only a fraction of what you are getting is useful. So you have to sieve and organise it properly.

Besides that you have many legal arguments which will take a long time to explain.

Q: What challenges do you face when doing all this?

A: The challenges start from the moment you are facing allegations against a suspect. You can imagine before a prosecutor decides to go forward with a case, he must be having a lot of material.

A lot of it may be not be useful, but you have to sift through that material and in a multi-suspect case where they (suspects) are charged jointly there will be a lot of material that relates to one and does not directly relate to the other but ultimately, put together, the prosecutor tries to be build a picture. So it means that you have to go through all the material that is presented to you that is related to the others as well as your client to see how best to deal with the connection that has been built by the prosecutor.

That is a lot of work, again as I said by the time you stand in court, present a witness and what you are presenting is just a summary of the arguments. In this case we had a limit of two witnesses, we wanted to present more but there was a limit. We had tens of witnesses who were ready to present themselves physically in court. So getting that evidence and putting it together is quite a task.

Q: But definitely, the environment was not a new territory to you.

A: Certainly not, it was not a new territory to me, I could say I have been in the game for quite a long time. I have been a defence attorney at the International Criminal Court for Rwanda (ICTR)… this is the 17th year. Actually I have been at the Rwanda tribunal as long as it has existed.

If I could take you back a little, it is not obvious to many that between the Nuremberg and the Tokyo tribunals and the Rwanda and Yugoslavia tribunals, there were no international criminal tribunals so what we are saying is that there was a lacuna in that sense. The study of international criminal law was theory.

We are talking of the 1940’s after the World War II (the Nuremberg and the Tokyo tribunals) and then the next tribunal we had of a similar nature were the Rwanda tribunal and the Yugoslavia tribunal.
So any practitioner in international law who has a history to talk about in practice can only talk about that kind of practice.

It is unlikely you will find people who practiced and defended the alleged war criminals before the Nuremberg tribunals in the 40’s practicing today if they are alive.

Q: So certainly you are experienced on issues to do with tribunals, is it also your passion?

A: It is my passion; it is what I do day to day. I still have cases at the ICTR, in fact even the ICC heavily borrowed its stuff from the ICTR and the ICTY (International Criminal Tribunal for the former Yugoslavia) and many of those people at various levels except the judges are people who worked in these institutions that we worked with.

The (ICC) Registrar for instance, Silvana Arbia started the famous Butare case which is one of the longest running cases in international criminal law. It lasted for close to 10 years.

[The Butare case at the ICTR involved six genocide suspects accused from Butare prefecture, South Rwanda].
I eventually joined that case and we are on appeal now. So she started that case, she was the prosecutor as we were defending the military before she eventually joined the ICC as the Registrar.

The deputy registrar, we worked together for a long time in Arusha, in fact he was deputy-in-charge and ultimately in-charge of the defence lawyers’ department so it is someone we have worked with for a long time.

The incoming Prosecutor [Fatou] Bensouda, we were actually in the same case for quite a while, the Military I case in Arusha. This is the biggest case in Arusha – that is Bagashora and others – we were working together. She was prosecuting and we were defending.

[Theoneste Bagashora who served as the Director of Cabinet in Rwanda is charged alongside others for the 1994 genocide].

Q: It’s time I too started following the Rwanda tribunals, it sounds interesting. But still with all this experience, you must have burnt the midnight oil to succeed in Ali’s case. I can imagine there are days you did not sleep.

A: Certainly! It is not an easy task, let no one ever create an impression that you can ever talk about a case at that level that is a walk over, that you can walk in there and walk out and say, you know [you have won]. There is a lot of work that has to be done. That again is reflected in the composition of the teams. You notice in our case we had four lawyers most of who have had that experience.

We had John Philpot from Canada, we have done many cases with him in Arusha, there is Greg who has also done a lot of cases at the ICTY and then in the background we had legal assistants, case managers, interns. A lot of people but despite all that the work involved was a lot.

Q: Is your law firm [Ogeto, Otachi & Co. Advocates] the only one specialising in international law here in Kenya?

A: I don’t actually think there is any other firm in Kenya that specialises in international criminal law. Or even in East Africa, in fact I doubt if there is any.

For instance at the ICTR, from the region, it was basically a number of Kenyans who had been in the defence, one or two Tanzanians and that was it. So it is very difficult to talk about a firm of advocates that specialises in international criminal practice but for my colleague Mr Ogeto and I this is what we have been doing for the last 16 years. My colleague – apart from the ICTR – has practiced at the Sierra Leone tribunal; the Charles Taylor tribunal.

Q: How did you receive news that your client had been cleared by the court, did it surprise you or were you expecting it?

A: As you can well imagine, first of all we were obviously very delighted, I am sure you saw that on the face of our client [Ali] last week.

We in the defence were very delighted because it is no mean task to achieve this kind of result, but having said that, I personally had a strong feeling that the chances of success were very high. I was fairly confident, we felt that with the effort we had put in, we had seriously challenged the prosecution case and indeed we were fairly confident.

All the other teams had worked hard equally and we wish them all the best, we know they have quite a task ahead but we wish them all the best.
Read full ICC ruling in Kenya case 2.
: The [ICC] Prosecutor has indicated that he will continue carrying out investigations on your client despite the acquittal; does this worry you, in any way?

A: I will not say that we are extremely worried. But certainly we do not take the prosecutor’s promise (I don’t know whether to call it a threat) I don’t want to take it as an idle statement. There is a likelihood that he may want to do a follow up on Kibera and Kisumu, but I wouldn’t say we are extremely worried about that because in the course of our investigations, we have tried to look into these aspects.

But again maybe I should say we will cross the bridge when we get there because we are not very sure what he may come up with.

But my client is confident that he was not involved in this sort of criminal conduct, he is confident that even in regards to Kisumu and Kibera the alleged excessive use of force was not really and cannot qualify for a policy. There was no such policy to use excessive force.

It cannot be denied that there were a few instances – you have seen a policeman who was charged in a court of law and tried – it cannot really be said that all the police acted perfectly, but that is quite different from saying that if some reasonable force was used in certain circumstances within the law and people lost their lives, that that itself was criminal because it is a normal thing that in scenarios of crimes of this nature, if police were to do as they should to carry out their duties, people will lose their lives. Read Ocampo’s decision on the court’s outcome.

There will be criminals who will lose their lives, people will be injured, some could be injured by stray bullets and so on and so forth.

But one thing my client is confident about is that there was no policy to target any group of civilians for any sort of criminal activity. The police did their best to save lives; that really is the bottom-line.


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