Why I believe ICC is structurally unable to deliver justice

By Charles Kanjama

My attitude to the International Criminal Court (ICC) has gradually developed to a point of total opposition. I will tell you why.

The first concern in a legal-justice system is always structural. Is there a balance between the prosecution and the defence? Are the judges impartial? Are they free enough to consider the evidence and law dispassionately? Are there extra-legal pressures affecting the judicial process, and can they be contained?

History shows that the best laws still result in unjust outcomes if the structural elements of the justice system are badly designed.

One typical cause of structural injustice occurs when a judicial structure is set up by executive prerogative for a limited judicial purpose due to political considerations. This tends to result in excessive prosecutorial power, diminished judicial freedom and abuses of legal procedure.

Particularly egregious examples in history include the trial of Mary Queen of Scots by her cousin Elizabeth I’s tribunal, the judicial lynching of Joan of Arc, the Nuremberg trials after World War II, and Kenya’s own Kapenguria trials.

They were all one-sided manifestations of victor’s justice, ruler’s justice, the justice of the powerful against the weak.

These tribunals were simply too big to fail, too big to acquit. The argument in Kenya’s ICC case is that if Uhuru and Ruto are innocent, they have nothing to fear. The truth is precisely the reverse. Precisely if they are innocent, they have a lot to fear at the ICC.

ICC’s structural problems are that it is a special tribunal, with very few trials, too politically-loaded, incurring too much expense. Unlike a court that handles numerous cases, it is too big to acquit.

This conclusion is also informed by my view of ICC Prosecutor Luis Moreno-Ocampo’s investigations, of the procedural rulings of the Pre-trial and Appeal Chambers, of ICC’s approach to the Kenya and Thomas Lubanga cases, of the structure, politics and configuration of the ICC, and of the imbalance caused by the failure of several important countries to submit to ICC jurisdiction.

The latest procedural misstep at ICC, the refusal of oral submissions on the Ocampo Four’s jurisdiction appeal, is beyond the pale.

There is a difference between hang juries, also called hanging juries, and hung or split juries. Hung juries cannot agree, while hang juries have decided even before you present your case. Hung juries can hardly look each other in the eye.

A hang jury, in contrast, can hardly look you in the eye. I have looked in the eye of the ICC, and also at the alleged ‘I’ of ICC, and I have seen a hang jury that we should not throw anyone to.

Kenyan critics rightly savaged the idea of moving the ICC trials to the East African Court of Justice (EACJ) because the court is too tilted in favour of suspects. The same scrutiny shows that the ICC is too tilted against the suspects.

The same test that disqualifies the EACJ disqualifies the ICC. I prefer a local judicial process, not against the Ocampo Four, but against any and all Kenyans reasonably suspected of crimes in the PEV.

It has become fashionable to use technical legal arguments to criticise attempts to remove the Kenya case from the ICC. Of course the ‘Ocampo Four’ as individuals subject to the ICC must co-operate fully with it.

But this does not mean that Kenya cannot dismantle the ICC case. The truth, known both by the ICC and by African countries, is that if Africa decides to jettison the ICC, no force in the world can save the court.

Kenya’s case remains at the ICC because we are ambivalent. We are at the ICC because many Kenyans remain in its thrall, taken up into an ecstatic expectation of justice that the ICC is structurally unable to deliver. If our view changes, the ICC will bow to us.

The writer is an Advocate of the High Court