By Ndung’u Wainaina
The Kenya situation before the International Criminal Court (ICC) entered the trial stage. Four individuals – Uhuru Kenyatta, William Ruto, Francis Muthaura and Joshua Sang – have been accused of bearing the greatest responsibility for crimes against humanity.
Though the court has stated its desire to pursue current cases, it should not be interpreted to mean that it cannot revisit other cases if more evidence comes up in future.
The ICC is a Government project, invited and endorsed by Parliament. The Waki Commission was a Government project. Its report and recommendations were adopted unanimously by Parliament. ICC is a Kenyan court of the last resort. MPs were categorically not vague; it was The Hague.
By voting for The Hague process, majority were thwarting justice while others feared the local tribunal net would be casted wide with likelihood of their prosecution. ICC cases are being carried out at the behest of the Government and Parliament and not of any other person or authority.
Uhuru, Ruto and Muthaura were actually serving in the various arms of the Government in 2005 when Kenya signed the Rome Statute.
Government is not party to the trial proceedings. Its role ceased with admissibility challenge appeal collapse. It is not entitled to evidence and witnesses’ disclosure. The Rome Statute does not anticipate sharing of information with an entity, which is not party to its criminal proceedings.
But there is danger. Because some of the accused have very close ties with the State and its machinery, it is likely the evidence and identity of witnesses will find way into public domain leading to elimination, intimidation or compromise. Already, a lot of information on witnesses and other intermediaries is circulating on the Internet and social media courtesy of key supporters of the accused persons. Yet the ICC and the office of Director of Public Prosecutions have done nothing about it.
It is not within the jurisdiction of Executive and Parliament to demand information regarding ICC engagement with either individual(s) or organisation(s). Regulation 97 of the ICC Registry’s Regulation is crystal clear on this matter. However, the Government is expected to fully cooperate and meet its obligations under the Rome Statute.
ICC has put Kenya political elite to accountability. As usual whenever cornered by watertight processes not easy to manipulate, capture or compromise, they retreat to ethnic mobilisation casting themselves as ‘victims being persecuted’. They spread and sell well-known fallacious propaganda “our community is being targeted and eliminated from leadership”.
This choreographed propaganda is intended to attack, bastardise and discredit the court, potential witnesses and intermediaries. Gangs for hire for certain accused persons have invaded every medium with their shameless lies and distortion.
Propaganda notwithstanding, the protection of witnesses and victims remains paramount. It overrides any right to disclosure held by the defence to the extent that it does not occasion any prejudice on the right for defence preparation. Victims’ interests are crucial in this process. It has been more than four years since the atrocities were committed and every passing day is an injustice to the victims. Prosecutor Fatou Bensouda is on record calling all to listen to suffering victims of massive crimes.
Some accused persons and their supporters are on record insidiously mocking and disparaging victims. They treat victims as atavistic savages with no rights. To them victims deserve no compassion and respect for their dignity. Political power calculus is more important than human life and dignity. Perpetrators of the violence act with a sense of impunity, secure in the belief that their actions would go unpunished.
Victims and witnesses are the cornerstone for successful investigation and prosecution. Witnesses need to have confidence in the law enforcement and prosecutorial authorities for them to come forward and assist in the cases without fear of intimidation, retribution and threats from the suspects and their supporters. Ensuring their safety and welfare sends a strong message to citizens that the justice system is effective. It demonstrates commitment to bringing criminals into the folds of the law.
A credible witness protection mechanism is an effective tool for combating local and international crimes for both prosecutors in the filing of criminal charges against criminals and the police in clearing investigations and securing successful prosecutions. Witness protection is no longer an issue at the national level alone. It demands international cooperation too. I want justice for the accused persons. But justice is meaningless if the suffering and pain of post-election violence (PEV) victims is inconsequential.
Credible national criminal proceedings for PEV serious crimes have been thwarted not because of lack of evidence or capacity but because of deceitful politics and lack of political will. It is common knowledge that the ICC considerably relied on evidence gathered by public institutions for initiating investigations.
These institutions and their reports are at the disposal of the Government. Kenya has all the evidence across all security agencies but the perpetrators are falsely ‘protected’.
ICC will only give us part of the PEV crimes story. The full truth will come out if the rest of the perpetrators are brought to justice through credible complementarity process. The Government has never genuinely accepted ‘positive complementarity’ due to the inherent fear within the top echelons of Government of ‘ripple-effect’.
Police and some politicians have in unison publicly discouraged such prosecutions. Top Government officials are notorious for making noise at the right moments and going inertia when the dust settles. The ICC process has exposed the hypocrisy of the State. It is now clear that justice, privileges and protection exist in abundance for high and mighty.
This is a doomed strategy. Remember the case of John Demjanjuk, the Nazi death camp guard convicted last year for his World War II role? Well, it took over 60 years but for Kenya, I strongly feel the gods of PEV victims will call sooner.
The writer is Executive Director, International Centre for Policy and Conflict
