ICC Fiddling

In Search of Justice

Ocampo is coming, and Kenya’s leaders are wriggling. In December, soon after Chief Prosecutor Luis Moreno-Ocampo announced his list of suspects, parliamentarians quickly tabled a bill calling for Kenya to withdraw from the Rome Statute, which established the International Criminal Court (ICC).

The ICC is only the latest in a series of international courts set up to try the most serious crimes, although others have been ad hoc tribunals dealing with specific cases in Cambodia, Rwanda, Sierra Leone and the former Yugoslavia.

So far the ICC has brought four men to trial out of 13 indictments issued, and it is expected to rule on whether to indict six Kenyans in the coming weeks. Efforts to try to forestall the issuing of indictments are underway, centred on attempts to revive the bankrupt notion of a local tribunal, the argument being that under the new Constitution the country will – suddenly, miraculously – be equipped to try, prosecute and punish wealthy elites who have for so long run roughshod over justice.

In time the new Constitution will do much, but not that much, not that quickly. Leading the bid to derail the ICC case is Vice President Kalonzo Musyoka who has tirelessly sought support for a deferment of the case.

He says President Mwai Kibaki ordered his mission to save the ‘Ocampo Six’, who include Kibaki’s right-hand man, Francis Muthaura. The others are Finance Minister Uhuru Kenyatta, former higher education minister William Ruto, former police chief Hussein Ali, former industrialisation minister Henry Kosgey and radio presenter Joshua Arap Sang.

“Deferral ... is not an attempt to escape justice,” Musyoka wrote in a recent op-ed published by The Daily Nation. Musyoka argued that the new Constitution means Kenya is ready and able to try all suspects in the post-election violence, thanks to the new institutions that it creates.

“The judiciary is exactly this kind of institution,” wrote Musyoka. “The system will have a new Chief Justice and a vetted Bench, a revamped and constitutionally entrenched office of the Director of Public Prosecutions, and a new Attorney General.” Except of course, that it isn’t, as the recent debacle over nominations for senior posts in the judiciary showed.

Kibaki’s unilateral naming of a new Chief Justice, Attorney General and Director of Public Prosecutions was widely criticised, re-opened a rift between the president and prime minister, was ruled unconstitutional by the speaker of Parliament, and ultimately led to the names being withdrawn.

This unedifying shambles undermines any attempt to show that Kenya is ready to try suspects itself with some commentators arguing that the suspects are busily trying to appoint their own judges.

Nevertheless, earlier this year in Addis Ababa, Musyoka won support at the African Union (AU), which regularly accuses Ocampo and the ICC of racism because he tries to nail evildoers who happen to be African.

Kenyans hardly need reminding of the horrors that took place in the weeks that followed the 2007 elections, violence that was organised and ordered by politicians and perpetrated by Africans against Africans. Yet Kibaki, who presided over those terrible weeks, told the AU that “national dignity and sovereignty” would be served by deferring the ICC case while Kenya’s judiciary is overhauled in preparation for domestic trials.

Ocampo’s critics point out that all five of the cases he has so far brought – in Central African Republic, Democratic Republic of Congo, Kenya, Sudan and Uganda – are in Africa and that Guinea, Ivory Coast, Nigeria and, now, Libya are in his sights. But Ocampo is also investigating abuses in Afghanistan, Georgia, Colombia, the Palestinian territories, Honduras and North Korea and some if not all of these cases will surely come.

Complaints at the AU that Ocampo is prejudiced look disingenuous and self-serving. Ocampo has shown a willingness to go after the continent’s untouchables, whether a murderous Sudanese president, a local Congolese thug, an unaccountable Kenyan politician or an infamous Ugandan rebel, stepping in where local justice mechanisms have proved unable or unwilling to bring people to book.

Libyan leader Muammar Gaddafi frequently rallies the loudest anti-Ocampo/anti-ICC voices and is backed by others who have shown themselves keener to protect their positions than their people.

The sad fact is that it is in Africa that justice so often fails the people it should serve. And while the leaders complain – doubtless with one eye on their own records and another on a jail cell in The Hague – the people seem not to.

An opinion poll in February showed that 57 percent of Kenyans favour ICC involvement and 61 percent did not support attempts to pull out of the process. Civil society groups in Kenya, including the Green Belt Movement founded by Nobel Prize winner Wangari Maathai and the National Council of NGOs, are compiling petitions to demonstrate the public’s support for the ICC and its dismay at attempts to sideline the process.

Musyoka continues his lobbying but all the government fiddling is likely to be in vain. Sudan tried and failed to persuade the five permanent members of the United Nations Security Council (Britain, China, France, Russia and the US) to agree to defer the indictment of its president, Omar al-Bashir. Kenya is unlikely to have any more success.
Britain has shown little willingness to see a deferral and the US has all but rejected the plan meaning that even if Musyoka succeeds in getting his case before the Security Council he is unlikely to find any more sympathetic an audience that he would find on the streets of Nairobi.