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Lack of watertight probe compromises ICC cases

By Machel Waikenda | September 15th 2013 at 00:00:00 GMT +0300

By Machel Waikenda

Right from the word go when immediate former prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo claimed his office was investigating alleged perpetrators of post-election violence in Kenya in 2010, and after summons of six Kenyans by the Pre-Trial Chamber II on 8 March 2011, the process has depicted a chronicle of an outright sham and possible witchhunting expedition.

In Ocampo’s initial list, Uhuru Kenyatta, William Ruto, Henry Kosgey, Francis Muthaura, Joshua Arap Sang and Mohammed Hussein Ali, all accused of crimes against humanity, were listed as Kenyans who bore the greatest responsibility during the raging violence.

These cases have been crumbling, one after another, clearly vindicating ICC’s critics on the objectivity of the Prosecutor’s office in handling the Kenyan cases. On 23 January 2012, the Pre-Trial Chamber II confirmed the charges against Kenyatta, Muthaura, Ruto, and Sang and declined to confirm the charges against Ali and Kosgey.

Thereafter, the case against Muthaura came crumbling and collapsed as it is bound to happen for the cases that lack of substantive evidence.

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Of significant interest is the fathomable and embarrassing impression by Prosecutor’s office on shallow investigations, of witnesses recanting testimonies like a leaking bucket thereby painting a grim picture on the nature of justice Fatou Bensouda’s prosecution team is pursuing.

The lateness of the first prosecution witness during the trial of Deputy president William Ruto at the Netherlands-based court illustrates a rather disturbing impression on prosecution’s hope honouring the court schedule given that this case was pre-planned and not an impromptu or emergency session.

Without discussing the material facts of the cases, in fact, Judge Eboe-Osuji described the scenario as a “shame” while adjourning the session to next week Tuesday. Moreover, in my opinion, it’s imperative to think outside the box on whether there exist any witnesses left from the fast-shrinking list.

It is no rocket science that the prosecution team seems ill-prepared and weak and saying its witnesses aren’t ready, in my opinion, it only makes the case to look like an apparent witchhunt. It is about time they face reality and confess that they don’t have a strong case and drop it.

The unfolding embarrassment playing out is a serious indictment of a prosecutorial office of an international court lending credence to fears that shallow and shoddy investigations were carried out to prop a barely sustainable case.

Of interest is the ICC’s preoccupation with Africa despite existence of unresolved bloody civil conflict in countries outside African continent in places like Syria that re-ignites the troubling question of when and how the International Criminal Court decides to get involved.

ICC mandates cuts across the 122 members worldwide that have ratified the Rome Statute. However, the perceived target against African leaders implies that Africa is the only fodder for the highest court. So far, ICC has been engaged in Kenya, Democratic Republic of the Congo, Uganda, the Central African Republic, Darfur/Sudan, Libya, Ivory Coast, and Mali.

In Iraq, Venezuela, Palestine, Colombia, and Afghanistan, it has decided not to open investigations despite mass massacre of civilians coupled by other humanitarian crises. The purpose and principle that informed inception of ICC was to fight impunity but now the process has degenerated into some kind of bias rather than the fight against impunity.

If indeed the doctrine of administration of justice is the prime objective that ICC is pursuing, why the delay to intervene in countries where anarchy is imminent? Leaders of the African Union have also expressed apparent displeasure in the manner in which ICC is seemingly targeting only African leaders. During the AU Summit, chairperson of the AU Assembly — Ethiopia Prime Minister Hailemariam Desalegn said African leaders came to consensus that the ICC process conducted in Africa has a flaw.

Kenya is a sovereign state under the leadership of a democratically elected, stable government as portrayed during the just ended March 4 polls a show, which many prophets of doom fail to appreciate. Grave, serious and heinous crimes were committed during Kenya’s darkest period in our history. These acts cannot go unpunished but there must exist a platform for national healing and reconciliation, and that is only achievable through local institutions and homegrown solutions.



ICC HAGUE Luis Moreno-Ocampo
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