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| Ms Jendayi Frazer |
In Summary
The
ICC cases facing President Kenyatta, his Deputy William Ruto and radio
journalist Joshua Sang should be dismissed because the prosecutor did
not conduct credible investigations and the process will end up in
“empty justice,” a former US diplomat on Africa has said.
Former
US Assistant Secretary of State for African Affairs Jendayi Frazer says
the African Union request to the UN Security Council to postpone the
cases for a year should, in fact, be replaced with a dismissal of the
cases.
Dr Frazer was in office at the time of the
disputed 2007 election results and the violence and political agreements
that followed what is characterised as one of the darkest chapters in
Kenya’s history and was one of the diplomats working to resolve the
crisis.
“I think the cases are so weak they should be
dismissed. Deferral just keeps a cloud over the head of the leadership.
But that said, I think you can’t have a case where you are asking the
President and the Deputy President to be at The Hague. That doesn’t make
any sense to me,” she said.
Dr Frazer revealed in an interview with the Sunday Nation
that she hired a lawyer “close to the ICC” specifically to look at the
evidence against President Kenyatta who, she says, informed her current
position.
She asked for the legal opinion because she
found the case was not consistent with the US embassy briefings from the
time of the crisis and her subsequent meetings with Mr Kenyatta at the
time.
“It did not seem consistent with my meetings with
him during the post-election violence; it did not seem consistent with
any of the cable traffic coming out of the US embassy at the time. They
(lawyers) looked into the case and they said it’s all hearsay,” she
said.
She then attacked the office of the prosecutor:
“Where are the forensics? Who did the actual investigation? … I feel
that the victims will be most served by having cases that have real
forensics so that people who actually killed them can be brought to
justice and that’s not happening. The victims aren’t going to get any
justice from the ICC.”
At the start of investigations
in 2010, Chief Prosecutor Luis Moreno-Ocampo, deputised by current Chief
Prosecutor Fatou Bensouda, promised that he would follow the evidence
and nothing more.
“We will investigate the crimes,
protecting the victims and respecting the rights of the suspects. We
will follow the evidence, and we will prosecute those most responsible,”
Mr Moreno-Ocampo said.
The decision on the quality of
evidence will be decided by the trial judges currently handling the
matter but Dr Frazer seems unconvinced and says ICC kowtows to Western
powers.
The straight shooting former diplomat is
pessimistic about the outcome of the request by the African Union to the
Security Council on the Kenyan cases because “It’s the exact same
countries who have been manipulating the ICC. The prominent five are
there and this is the problem of the institutions that we have today …
that they cannot serve all of us equally.”
The
“prominent five” are the five permanent members of the UN Security
Council who have the power to veto any decision. They are China, US,
Britain, France, and Russia.
“And that’s how the ICC
has gone so terribly wrong. Just give me one case that’s not African.
They won’t go after Assad because Russia won’t let them,” she said.
Syrian
President Bashar al-Assad was recently suspected of using chemical
weapons against civilians in a civil war in his country in which
thousands have died.
The US stopped short of a military
strike over Russia’s opposition to such an eventuality and after an
agreement that President Assad would cede his chemical weapons to
international watch.
Dr Frazer referred to the Syrian
scenario as part of the ICC failures and called the court a “broken
institution” whose prosecutor had no capacity to properly investigate
crimes against humanity and had ended up with only Africans in the dock.
“I
think that people conflict the ICC with justice. I don’t care what the
ICC decides in the Kenyan case, there will be no justice. There is no
justice when it’s a political case. It was a case brought by politicians
essentially failing to act because it was politics,” she said.
“If
somebody wants to feel empty justice, go right ahead and believe that
the ICC represents that for you. The ICC is a broken institution.”
She said the ICC and especially the prosecutor’s office should be reformed for it to properly accomplish its mandate.
“The
people who believe in international justice should be worried that the
ICC is a broken institution. The people who are worried about impunity
should be saying we should do something about the office of the
prosecutor. Give them the real capacity to investigate crimes against
humanity, not to selectively choose politicians to bring forward,” she
said.
During the interview in Nairobi, Dr Frazer, however, said her views should not be taken as endorsing impunity.
“The
assumption is that you can’t be against the ICC and against impunity.
I’m against the ICC and against impunity. I’m very, very worried about
impunity which is why I’m upset with the ICC and the reasons it’s gone
so terribly wrong. If the ICC was a serious court and the office of the
prosecutor was a serious office, then I would have more confidence,” she
said.
Dr Frazer was the first high ranking diplomat to
fly into Kenya after the break-out of the post-election violence in
2008. She told the Sunday Nation this week that the Bush
administration for which she worked for, knew that the election contest
was a close call and that most likely, the loser would cry foul but the
speed and scale of the violence took Washington by surprise.
CLOSE RACE
“We
knew that the race was very close and any time you have a close race
you have the potential for discord. It’s typical in Africa that the
loser is going to say there was cheating especially if the race is tight
up to the very end. That wasn’t a surprise but the quickness of the
descent into violence and the scale of that violence was shocking,” she
said.
“I was stunned because when I was flying through
Europe and I stopped to buy some gadget ... I gave my boarding pass to
the shop owner and he said “You are not going to Kenya, are you?” And
then when I got on the plane, it was largely empty and that’s when I
really knew that things were bad. The planes coming to Kenya are always
full of people and no one was coming in such a short period of time,”
she said.
She had been dispatched to Kenya by Secretary
of State Condoleezza Rice to find President Kibaki and his main
challenger, ODM presidential candidate Raila Odinga, holding different
positions.
On the one hand, she said, President Kibaki
said that anyone who disputed the official results should go to court
while, on the other hand, Mr Odinga said he did not have any trust in
the existing institutions and that his victory had been stolen.
She
was confident that there would finally be a truce but she returned to
Washington without a breakthrough. Dr Rice would later fly to Kenya and
meet the opposing sides and it would take her efforts and that of
African Union and regional leaders to finally craft agreements and bring
a truce.
Dr Frazer says the emotions among the people who accompanied President Kibaki and Mr Odinga to meetings was palpable.
“There
was definitely anger. I wouldn’t say that I saw anger in President
Kibaki or even Raila but the people around them had a lot of passion,”
she said.
“(But) I always believed a truce was possible
because they all knew each other and they all had been with each other.
The thing about Kenyan politics is that people change alliances rather
easily.”
She criticised former UN chief Kofi Annan, who
brokered the Kenyan deal, saying he should not have used “the ICC as an
instrument of mediation”.
“That to me doesn’t seem
like the criteria for an ICC case. An ICC case is that you have to raise
to a certain level of atrocities sustained over many, many years. It’s
not a tool of leverage in a mediation process,” she said.
Dr
Frazer said that the Obama administration should not peg US relations
with Kenya on the ICC cases because Washington deals with countries with
major outstanding issues.
She cited Russia, which she
said had committed atrocities in Chechnya, China’s feud with Tibet and
Saudi Arabia and said that the US has its own problems in places like
Iraq.
“Who really are we? We are not in fact a party to
the Rome Statute. Why would we undermine our national strategic
interests in terms of the relations between the US and Kenya because of a
very weak case which should not have been before the ICC in the first
place?” she said
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