Reflections on the ICC Process

After publishing the first installments of my story I was contacted by a quite well known Kenyan journalist. He asked me if I knew how Martha Karua had used Joseph Kamau (formerly CID chief) and private investigator Jane Nyawira to frame Ruto, Kones and Laboso. If I did not, he said, he would supply the details. However he got cold feet and clammed up when pressed. The late Kipkalya Kones, former minister of roads and Lorna Laboso, assistant minister for Home Affairs, were potential candidates for charges of crimes against humanity until their deaths in a plane crash in June 2008.

This confirmed what I already knew, that there are others yet to speak out who know further details about Ruto's framing. Before speaking to John Busii I had been in touch with another member of the National Council for NGOs who promised to blow the whistle on the conspiracy but he had also proved unwilling to go on the record.

There was one part of John Busii's evidence that I originally held back, regarding it as incredible. He had told me that he believed the Western powers stood behind the conspiracy due to their fears of Ruto and Kenyatta's radicalism. I thought that this claim suffered from the same two flaws that afflict all conspiracy theories. It assumed governments are efficient and that people can keep secrets. However at the time I believed US Aid was just another NGO. I subsequently discovered that it is a US Government agency tasked with promoting US Government policy. So it is clear that the Americans, at least, were involved at some level.

In saying this I am not at all lining up with those who believe that the ICC process is a racist neo-colonialist plot. Those who make this charge point out that the ICC has only tried black Africans. Yet this is purely an accident of timing. The white Yugoslavian war criminals were also tried at the Hague. They were tried by ad hoc tribunals as the ICC had yet to be established, but had the ICC been set up ten years earlier it would have tried these cases also. Moreover the ICC was not set up by the West but by the whole international community, with the enthusiastic participation of Africans who have taken 20% of the top jobs. Of the 8 African ICC cases, 5 were self referrals, two were referred by the security council and just one initiated by the ICC. Meanwhile those who point to the involvement of US Aid as proof of a racist western plot surely cannot intend to imply that Obama's motivation in supporting the ICC process derives from the fact he is half white? That is even less plausible than the alternate charge that he is moved by the fact he is half Luo, and thus inclined to favour Odinga.

I support the ICC and the system of international law and I think it would be tragic if false allegations of racism laid against the ICC were to stymie the prosecution of the likes of Bashir, the blood soaked racist tyrant of the Sudan who, by his open defiance of the ICC, has lost the right to the presumption of innocence enjoyed by Ruto and Kenyatta. Advocates of Kenya's withdrawal from the Rome statute point out that the US is not a signatory. One wonders at the point being made here. That Kenyan leaders should be able to get away with crimes against humanity because American presidents can? Kenyans who reason thus forget that America's crimes are committed against foreigners far away, the victims of impunity in Kenya are Kenyans. Moreover, while Kenya may indeed have the right to pull out of the Rome statute she would find it much harder to justify withdrawal from the ongoing ICC process, given the many promises with which her leaders (including Kenyatta and Ruto) have bound her. And, incidentally, if she did withdraw she would lose the right that she possesses under the Rome statute to pursue war crimes that might be committed against Kenya by non signatory states such as the USA.

Having said all of that, if the ICC has a right to hold Kenya to her promise of cooperation the Kenyan Government also has the right to hold the ICC to its promise to provide a fair trial for the four Kenyan citizens it has indicted.

And here their is a real question mark against the ICC's capacity. A pre trial ruling of the ICC, overturning its own precedents, granted the prosecution motion to be allowed almost unlimited witness coaching. Even if the defence is allowed similar latitude it wont create a level playing field as such extensive coaching can only benefit the party that is lying. This ruling, coming on top of the evidence of unethical evidence gathering methods by former ICC prosecutor Luis Ocampo makes it hard to have faith that the trial of the Ocampo four will be fair.

This greatly strengthens the formerly weak argument for transferring the cases to an African court. The counter-argument here has always been that such a transfer would further delay justice and that an African court might be unwilling to convict Kenyatta or Ruto even if the evidence indicated that it should. However with the exposure of Ocampo's antics (by myself and others) and the pre-trial ruling overturning all sound legal precedent, the argument now devolves to a choice between two trial venues, each with a question mark against their capacity to offer impartial justice.

Whether or not the ICC agrees to a transfer of jurisdiction it must urgently address the failings of both its prosecutorial and judicial arms in the case of the Ocampo four. I do not consider it melodramatic to say that the future of the international justice system hangs in the balance.

Read "Why the Charges Against Ruto Don't Add Up"