Ocampo remarks spark fury over ‘politics’ around Kenyan ICC cases

Former ICC Prosecutor Luis Moreno-Ocampo. PHOTO: FILE/STANDARD]

By FELIX OLICK

Lawyers are concerned that former International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo is legitimising claims that the twin Kenyan cases have been infiltrated by international politics.

This comes even as a section of civil society expressed outrage that post-election violence murderers and rapists will walk free even as The Hague prosecutors signaled to what could be the beginning of the end of one of the twin Kenyan cases.

In a candid interview, Ocampo, who began the investigations in Kenya admitted that some diplomats whom he did not name exerted pressure on him to block the two leaders from the ballot.

“There were some diplomats asking me to do something more to prevent Mr Kenyatta or Mr Ruto to run in the elections. I said, it’s not my job. Judges in Kenya should do that. And if they authorise them to run, people will vote. And if people vote for them, we have nothing to say,” Ocampo opened up for the first time.

Mr Kibe Mungai, an advocate of the High Court of Kenya says Ocampo has finally confirmed that the ICC cases have been riddled with political power games.

“It was obvious people like Kofi Annan and some Western nations particularly Britain and Germany wanted Uhuru out of the race to create an easy path for Raila by eliminating competition,” he told The Standard On Sunday. Law Society of Kenya Chief Executive Appollo Mboya said that Ocampo’s comments were legitimising claims by the ICC defendants that their cases have been infiltrated by saying they are not helpful to Bensouda.

“Ocampo should have followed the conventional wisdom that if somebody has taken over, you desist from making comments which may be interpreted as affecting your successors tenure in office,” observed Mboya.

“Look at former Attorney General Amos Wako, he has kept quiet about his stint in that office. Ocampo should have kept his words for his memoir,” he added.

Alleged plot

Just recently, Ruto’s lead counsel Karim Khan implicated former American Ambassador to Kenya Michael Rannerberger in an alleged plot to fix the DP.

The British lawyer claimed that Rannerberger through the US funded programme-USAID, procured witnesses to testify against him at The Hague.

But amid the new development, the civil societies have trailed their guns at the Director of Public Prosecutions Keriako Tobiko after he revealed that post-election offenders would not be charged locally.

“The office of the DPP is failing its constitutional responsibility and duty. It is covering up for impunity. The holder of that office is being untruthful on investigations and prosecution of the serious post-election violence crimes,” maintained Ndung’u Wainaina, Executive Director for International Center for Policy and Conflict.

Mr Tobiko dashed the hopes of victims of the bloodshed on Wednesday and declared that cases arising from the violence are not prosecutable due to insufficient evidence.

“The sad and painful truth therefore, is that at present, there are no cases arising out of the 2007/08 PEV that can be prosecuted before the International Crimes Division,” the DPP told stakeholders in a workshop in Naivasha.

On the same day, International Criminal Court Chief Prosecutor Fatou Bensouda gave the clearest indication that the case against President Uhuru Kenyatta was hanging on a thin thread.

The prosecution admitted it had exhausted all investigative avenues, except the examination of Uhuru’s financial records, which it accused the Government of obstructing.

They have now asked the three-judge bench to adjourn the case indefinitely until the Government provides Uhuru’s financial records that they believe could be an important lead on whether the President bankrolled the violence.

“In the absence of financial records, the remaining stones that are remaining are better characterised as pebbles and realistic prospects of turning them to yield conclusive evidence is minimum,” Prosecution Attorney Benjamin Gumbert admitted.

Legal experts are unanimous that it would be a miracle if the Gambian born Prosecutor rejuvenates the case to sustain a serious case against President Kenyatta.

“It no longer seems the Prosecution can sustain a serious case against Kenyatta,” Phil Clark, an expert in international justice at London University’s School of Oriental and African Studies told The Standard On Sunday.

Financial records

The same concerns are expressed by Clair Duffy, Senior Legal Advisor at the International Bar Association who agrees “it’s unlikely that the OTP is going to be able to save its case against President Kenyatta”.

Ms Duffy says even if Uhuru financed the violence as the prosecution allege, that may not necessarily be reflected in his financial records.

“When individuals are involved in criminal activity involving movement of large sums of money they tend to do it in more sophisticated ways than just moving it from one account to another with a transparent paper trail,” she observed.

Although the case against Deputy President William Ruto and Joshua arap Sang began on a strong note, it is also running into roadblocks with some seven star witnesses having refused to testify. Bensouda has now asked the judges to request the Government to compel the witnesses to testify a position that is already being contested by the State.

Speaking in Naivasha, Tobiko said more than 4,000 cases reviewed by the multi-agency task force were not prosecutable whether as ordinary crimes or otherwise for inadequate evidence. But according to a section of the Civil Society, the DPP is being dishonest and is remarks are a manifestation of lack of courage and will to tackle the crimes decisively.

This week, two key meeting are scheduled at The Hague that would define the future of the two cases. Attorney General Githu Muigai would be present during the status conferences on Thursday and Friday to ‘set the record straight’ on the controversial issues that have put them at odds with Bensouda.

On Thursday, Mr Githu would explain why they have declined to disclose the financial records of President Kenyatta.

The following day, the Government Chief Legal Advisor would be explaining to the Judges why the Government cannot compel witnesses to appear before the ICC.