Justice Julia Sebutinde, a Judge at the International Court of Justice in the Hague is reported to have urged the ICC to “listen” to it’s members in Africa. South Africa’s President Jacob Zuma is quoted to have urged the ICC to compromise with Kenyan leaders by allowing the trials to go ahead without their personal presence in the court.
Meanwhile, the African Union (AU) is turning up diplomatic heat against the court. The heads of state meet this week not to promote accountability of heinous crimes against humanity but to seek to “avoid” the trial of the accused before the International Criminal Court (ICC) which was formed in 2002.
It is no secret that African leaders have phobia for institutions which seek to promote genuine accountability.
Apparently, compounded by the Westgate mall attack, it is also starting to look more likely that one of the accused, President Uhuru Kenyatta will opt to skip appearing at the Hague Court during his trial set to commence on 12th November which will trigger an arrest warrant to be issued and other arrays of sanctions at a time when the world needs Kenya in the fight against terrorism in the horn of Africa.
The tale of the Kenyan cases at the ICC is a long one. Following the death of over 1,100 people as a result of the 2007-08 postelection violence, the quest for justice in earnest started leading to where we are today.
What I find odd is that the panel of judges at the ICC ruled on 23rd January 2012 that four Kenyans out of the “OcampoSix” would face charges of crimes against humanity, murder, rape, forcible expulsion and other inhuman acts. These four included Uhuru Kenyatta and William Samoei Ruto.
This confirmation of charges as detailed under Article 61 of the Rome Statute of the ICC is an elaborate process. The prosecutor has to support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The person charged is also allowed to take plea, challenge evidence presented by the prosecutor and or present evidence.
This was way back in 2012. But still, by the time of the elections in 2013, Kenyatta and Ruto somehow were still eligible to have a stab at the highest office on the land.
Clearly, the powers that be seemed to have underestimated the consequences a “UhuRuto” victory would have on the ICC cases. After all, they were not the outright “favourites”. The reality of a sitting president of a sovereign state appearing in the dock to answer cases against humanity had not dawned.
On 16th December 2008, President Kibaki and Prime Minister Raila Odinga while receiving the Waki Report on the postelection violence, they signed an agreement to the effect that those “charged” with crimes related to the postelection violence (read Uhuru Kenyatta and William Ruto) should neither hold public office nor contest for any elective office. The two seemed to comprehend the likely intricacies it was all likely to degenerate too.
On a related matter, the civil society in Kenya took the matter before the high court during which they were seeking a declaration that the duo’s candidature is contrary to Chapter Six of the Constitution of Kenya. The cause of action arose from the fact that since the two are facing charges of crimes against humanity, they do not attain the standards set out in Chapter Six on the points of integrity and the code of conduct of individuals fit to run for public office.
Apart from the fact that this chapter was vague and hence afforded judiciary immense discretionary powers on the matter, the civil society somehow filed the case in a court which had no jurisdiction on the matter. As it was later ruled by the 5-Judge bench, only the Supreme Court has exclusive jurisdiction to handle the nature of case.
I very well appreciate the fact that the Rome Statute of the ICC provides under Article 66 the presumption of innocence which is a hallmark of any criminal justice system.
The Statute then goes silent on what rights of an accused are suspended once the charges against them have been confirmed.
Given the nature of crimes handled at the court, confirmation of charges ought to have some restrictions pending the conviction because it has already formed a basis of a trial. Failure to do so will most certainly subject the entire court process to an unknown territory of being overtaken by events as is turning out to be so in the instant case.
In Kenya, the government is fast-tracking the closure of IDP camps, families are receiving cash awards to resettle themselves and start normal life. A new constitution is in place and old wounds are seemingly being healed.
Of course, denying Kenyatta or Ruto a stab at the presidency would have come with consequences of its own, re-awakening many decades of bitter rivalry between Kenya’s two main tribes i.e. the Kikuyu and the Luo. Kenya’s political ethnic arithmetic would pit huge sections of Ruto’s Kalenjin and Kenyatta’s Kikuyu against Odinga’s Luo.
The question is whether those consequences would have been lighter compared with the intricacies of trying a sitting president and deputy president of a sovereign state during their term in office. One would think the former would be a better evil for the ICC to stomach.
In the end, it is the victims of such heinous crimes who suffer the most.
Withdrawing from the ICC would be an insult to the victims. What needs to be done is to ensure that justice prevails in the interest of the victims.
How this is to be done is a subject of debate and indeed, the ICC needs to listen to it’s member states in the interest of the victims whilst ensuring that the bar set to achieve justice for the victims is not lowered by any margin.
It is a better way for the court to remain credible and legitimate. Failure to do this will result in possible withdrawals by state parties from the Rome Statute which will in the wider context inevitably amount to a betrayal of the very people it is mandated to serve by delivering justice to them.
It is also worth noting that Africans have in the past failed to have successful tribunals which aim to protect human rights and rule of law. A case in point is the Southern African Development Community (SADC) Tribunal. The Tribunal passed judgement against the Zimbabwean government which it refused to comply with but instead lobbied other SADC members to have it shut down. The result was obvious; the tribunal was abolished in August 2012.
The window which will ensure that victims of not only the Kenyan poll violence get justice, is small and a lot is being done to shrink it further. However, on a more evolved response, it is in the interest of Africa to strengthen not only national institutions of accountability and justice but it is also an international obligation of the continent. It is in the interest of Africa to purposely strengthen the ICC rather than walk away from it. All the victims deserve justice.