By appearing to give the government time to deal with the post-election violence, the ICC prosecutor was actually handing it a rope to hang the suspects before he could move for the kill
Louis Moreno-Ocampo may have many personal and professional failings, but he has a fine legal mind and is endowed with the most crucial prosecutorial skill — a killing instinct. In his work as a criminal prosecutor, Mr. Moreno- Ocampo is an accomplished predator.
These predatory instincts are clear from an analysis of the way he is dealing with the Kenyan case and how he has managed to get the whole country flat-footed at The Hague.
He had largely managed to compromise the position of the Kenyan government before the International Criminal Court (ICC) and ensured that the state could not extend a helping hand to those he had targeted.
Kenya’s case presented Mr. Moreno- Ocampo with two challenges. The first is that he needed to show the ICC that the Kenyan government was unwilling or unable to take action against the suspects of post-election violence in Kenya. The second challenge was to show the court that the Kenyan case was of sufficient magnitude to trigger the jurisdiction of the ICC.
One of the tactics Mr. Moreno-Ocampo employed was to disarm both the government and the suspects by appearing not to be too interested in the Kenyan case. Even after the Waki List was submitted to him, he still appeared casual in his manner, resulting in many believing he wasn’t giving it much thought.
It is only after he swore to make Kenya an example to the rest of the world that Kenyans realised that the Kenyan case was significant. By playing a bit disinterested in the Kenya case, Mr Moreno-Ocampo was able to get even the suspects to view ICC as not intent on bogging itself in the Kenyan case. He was acting as a reluctant prosecutor who was looking for a good reason not to get involved.
But he was looking at a chance to write history. The Rome Statutes allow the ICC prosecutor to proceed on a case proprio motu, legal jargon for “by its own motion” or acting on one’s own initiative. This is the first time the ICC has started a case proprio motu. That was an opportunity a prosecutor with the predatory instincts of Mr. Moreno Ocampo would never have let pass. But this could never have happened if Kenya had set up a local tribunal or initiated credible local investigations before the ICC prosecutor presented his case to the judges. At a time when it was thought that Mr. Moreno-Ocampo was giving Kenyans time to organise themselves and deal with the post election violence case, what he was actually doing was giving us enough rope to hang the suspects.
The position under international law is that the ICC is not supposed to replace the national criminal jurisdiction. It is meant to complement it. The ICC cannot, therefore, act on a matter where the national criminal justice system is dealing with the issues. It only comes in when the state is unwilling or is unable.
While the government was honestly trying to set up the local tribunal, and had successfully passed the International Crimes Act in December 2008, it misread Mr. Moreno-Ocampo’s motives and believed that he was genuinely interested in giving us time to deal with the issue. The government even signed a memorandum with the prosecutor on July 3, 2009 promising to voluntarily refer the Kenyan case if we were unable to set up the machinery by September 30, 2009. When we were unable to set up the local tribunal by the date we had undertaken, we played into his hands. He refused to allow us more time and moved in for the kill.
And for Mr Moreno-Ocampo, the government’s efforts to convince the world that it was serious in handling the post election violence cases turned out to be the best evidence he needed to persuade the ICC judges that the Kenyan government was unable to bring the suspects to justice.
In his application to open investigations, he recited these matters to the ICC judges and used the words and actions of the government against it saying:
“Therefore, according to the Kenyan authorities, there was no domestic prosecutions for the crimes against humanity allegedly committed in Kenya, nor is there any prospect that there ever will be.”
Regarding the second challenge, Mr Moreno-Ocampo presented reports by many local and international organisations that showed that the case in Kenya was serious enough to warrant ICC’s attention.
He presented the court with the Waki Commission report, the Kenya National Commission on Human Rights report, a report by the UN Office of the Higher Commission for Human Rights, another by the UN Office for the Coordination of Humanitarian Affairs, an inter-agency report done by United Nations Children’s Fund, United Nations Population Fund and the Christian Children’s Fund, a report by the UN Special Rapporteur on extrajudicial summary or arbitrary executions “Mission to Kenya”, one by Human Rights Watch, another by the International Crisis Group, and other local reports done by the Oscar Foundation, Fida, and the Centre for Rights Education and Awareness. Using these reports, he was able to show that the crimes in Kenya were serious enough to warrant international attention. He avoided addressing any situation by itself lest by themselves each failed the seriousness test. Instead, he drew a general picture as though the crimes in Kenya fell under one situation.
The year the Rome Statutes, which create the International Criminal Court, became binding on Kenya.
When the Kenyan government had the International Crimes Act successfully passed in Parliament.
The day in 2009 the government signed a memorandum with Mr Moreno-Ocampo promising to voluntarily refer the Kenyan case if local efforts failed by Sept 30.
He bundled up the alleged police killings of Mungiki members, the killings of members of the Sabaot Land Defence Force, the post-election violence killings in Rift Valley and the retaliatory attacks of Naivasha, Kisumu and the rest of the country and presented it to the judges as the Kenyan case.
The pre-trial chamber was to observe as follows: “The Chamber observes that the prosecutor’s submissions on gravity concern the assessment of gravity of the entire situation rather than the gravity of one or more potential cases.”
It still worked for Mr Moreno-Ocampo and the judges allowed him to investigate the situation in Kenya from June 1, 2005, when the Rome Statute became binding on Kenya, to November 26, 2009, when he made his request to the court. He managed to pass the post-election violence case through the pre-trial chamber by painting a mosaic using different pictures of factually unconnected crimes.
As he moves towards the trial, Mr. Moreno-Ocampo’s skills as a prosecutor are evident in the approach he has taken against the suspects.
Knowing that it will be difficult to get strong evidence against the suspects that can prove personal criminal conduct in each specific situation, he has decided to charge them jointly and present them to court as members of two joint criminal enterprises.
Mr Mwangi is an advocate of the High Court and the author of the ‘Black Bar’