A year after the last of the two Kenyan cases at the International Criminal Court (ICC) collapsed, the court has confirmed investigations on a suspect email which appears to suggest the cases were politically contrived.
A leaked email communication between former Chief Prosecutor Louis Moreno Ocampo and an American woman activist, which surfaced last week, falls short of admitting that the naming, investigating and prosecuting of top Kenyans fell outside genuine quest for justice for 2008 violence victims.
In the conversation accessed by the Sunday Standard and dated February 14, 2011, the activist asks Ocampo of the happenings in the cases and why the prosecution had upset the judges by naming the suspects before obtaining warrants against them in the court.
The answer and the care-free manner in which it was given is as perplexing as it is shocking.
“Judges don’t like pressure. I am trying to remove part of the elite. The trial will be after elections. New elite in power helping to punish the bad guys,” reads the email.
The prosecutor then proceeded to make a statement that implies that they were looking beyond the courtroom: “Judges don’t think in the same terms. They are focusing in the courtroom and have baby skin.”
Both Ocampo and his successor Fatou Bensouda have previously and severally denied that the cases were politically contrived. On Friday, the ICC prosecution said the email and its contents “are unknown to Prosecutor Bensouda and her office”. They said the matter ought to be addressed to the individuals who “purportedly engaged in the exchange”.
“The Office of the Prosecutor is, nonetheless, taking all necessary steps to verify the authenticity of the email,” Bensouda’s office said.
At the time of the email – February 14, 2011 – Ocampo had just lodged an application seeking the summonses of the six suspects – Uhuru Kenyatta, Francis Muthaura, Hussein Ali, William Ruto, Henry Kosgey and Joshua arap Sang.
Uhuru was then serving as Deputy Prime Minister, Ruto a Cabinet minister, Muthaura head of civil service, Ali police commissioner, Kosgey minister and Sang a radio host.
Incidentally, the same day the email was sent out, Sang had lodged an application in the court seeking, among other things, that “Mr Louis Moreno Ocampo be disqualified from prosecuting the Kenyan situation and the Kenyan case including any other or further investigation.”
Sang said Ocampo was acting out of “ulterior motives that are unrelated to the cause of justice” and was possibly incompetent or disinterested in competently investigating the Kenyan situation.
Before the judges could rule on Sang’s request, and as though picking on his concerns, they requested Ocampo to hand in all witness statements he had used as a basis for seeking summonses against the six.
In a judgment issued two days after making the request to Ocampo, the three pre-trial judges – Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser – refused to entertain all Sang’s concerns, except the one raising credibility issues against Ocampo.
They nevertheless refused to grant his request to disqualify Ocampo, with a finding that they had no competence to deal with such a request.
The email conversation is titled “Re: Musa Hilal” in possible reference to the Sudanese tribal leader and special advisor to President Omar Bashir, who the court had indicted.
The conversation also discussed the Congo DRC case, the situation in Darfur and the US support for the ICC, among other things. From the way the email is structured, it looks like the woman activist sought to understand a number of matters in the court and flagged them out in the conversation.
In the first question, she sought to understand why the ICC prosecution was seeking to tie Rwandan President Paul Kagame to suspect and Congo DRC militia leader Bosco Ntaganda. She expressed her frustrations with the US government policy on Africa and the manner of support for the court.
In response, the ex-prosecutor appears quite pleased with the woman’s quest for “reasons and understanding”. He called her out, “My dear *** (name redacted)... my comments in your text,” and proceeded to respond in-line and in bold.
“Kagame was behind Bosco and Nkunda. It was a proxy force to attack the Hutu’s. I need Kagame not protecting Bosco. I agree (that Kagame does not have an ICC arrest warrant), that is why I tried to work with him. He has to be on my side,” Ocampo says.
On the US support for the court, the ex-prosecutor sounds dejected in the email. He says President Barack Obama “focuses on three priorities – Iraq, Afghanistan and Middle East – and abandoned the rest, Darfur or Korea”.
When the woman wonders why the Americans are not doing enough to “use the court more”, Ocampo thunders back, brutally so: “It is not the American logic. Law is for inside USA. Outside is power.”