Luis Moreno-Ocampo is the world’s most powerful prosecutor. He has built a brilliant career as an able prosecutor fighting corruption and human rights abuses at home and internationally.
As a prosecutor in Argentina, Ocampo successfully conducted what was known as “The Trials of the Juntas” where he prosecuted military commanders for mass killings. He was later to successfully prosecute numerous high profile corruption cases.
Ocampo is also a law teacher. He has been an Associate Professor of Law at Buenos Aires University and has been a visiting professor to such prestigious universities as Stanford and Harvard Law School.
He has acted as a legal consultant of such prestigious institutions as the World Bank and United Nations and been a member of the advisory board of Transparency International. As a private practitioner, he has been a lawyer for the world’s most popular Argentinian, Diego Maradona.
Ocampo, however, has a taste for “showbiz”. During the 1990s, he was the star performer in a reality show known as “Forum, La Corte del Pueblo”, Spanish for a loose English translation of “The people’s court”. In it, he performs as a judge to cases brought by the public for voluntary arbitration.
It is this taste for “showbiz” that is becoming Ocampo’s undoing. His celebrity status has made him insensitive to the dictates of good judgment and his prosperous career is now threatened by his ego.
Take the case of media spokesperson Christian Palme who worked at The Office of the Prosecutor at the Hague. In October 2006, he received information that a South African journalist had confided in her friend that Ocampo had raped her in 2005 at a hotel in South Africa. Believing the complaint to be credible, Palme had investigated the matter and drafted a complaint which he forwarded to judges at The Hague. But the judges, after investigating the complaint, found it “manifestly unfounded” and dismissed it.
Ocampo then suspended Palme for three months. After the suspension period, Ocampo decided to summarily dismiss Palme for “serious misconduct” for falsely alleging that the prosecutor had committed the crime of rape.
Palme appealed Ocampo’s decision to the disciplinary advisory board of ICC and the board decided that the decision was wrong as Ocampo had made a decision on a matter he was personally involved in. They termed his decision “procedurally flawed” and recommended Palme get back his job.
Ocampo refused and confirmed the dismissal. Palme sued. The Administrative Tribunal of the International Labour Organisation in Geneva, which heard the case, ruled as follows: “It is a fundamental aspect of due process that a person should not take a decision in a matter in which he or she has a personal interest”.
They awarded Palme £120,000 (Sh15.2 million) in damages.
BACKGROUND – The ICC’s case against Kenya
• Kenya accepted the International Criminal Court’s jurisdiction on June 1, 2005.
• On November 5, 2009, the ICC Prosecutor submitted a request to investigate the 2007-2008 postelection violence in Kenya.
• Upon examination of the information collected on the violence, the ICC saw reasonable basis to believe that crimes against humanity had been committed on Kenyan territory.
• The court will, however, not be able to bring to justice every person suspected of crimes. The prosecutorial policy of the Office of the Prosecutor is to focus its investigations and prosecutions on those who bear greatest responsibility for such crimes.
A second case is that of Thomas Lubanga, a warlord in the Democratic Republic of Congo who had run a militia called Union of Congolese Patriots accused of ethnic cleansing, mutilations, rape and the use of child soldiers. Lubanga is charged at The Hague with conscripting and using child soldiers in the conflict in DRC.
During the course of his investigation, Ocampo received information from the UN and other NGOs that showed that Lubanga may be innocent. Ocampo hid the information. When the matter came out and he was challenged on his withholding exculpatory material from the court and the defence in 2008, he said that the information had been given to him confidentially and was protected by the Rome Statute from disclosure.
The judges did not agree with him. In a judgment they gave staying Lubanga’s prosecution and calling for his release, the court said that Ocampo was relying on an inapplicable provision of the Rome Statute to deny Lubanga a fair trial.
The court at the time held that the non-disclosure had resulted in a situation where the “trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial”. Ocampo later agreed to make some of these documents available under strict conditions and the court lifted the stay. The trial commenced in January 2009.
In his recent case against President Omar al-Bashir, he has been accused of pursuing a case with no chance of success purely for the drama the case generates. Firstly, it is questioned why Ocampo decided to issue an open warrant against President Bashir when he knew that such publicity was a warning to Bashir not to travel to unsafe spots.
Could be arrested
It is said that if he was genuinely interested in arresting Bashir, he would have issued a “sealed warrant” that would remain secret until President Bashir travelled to a territory where he could be arrested.
He was also criticised of charging President Bashir with genocide, which is the most difficult crime to prove in the Darfur conflict. A Sudanese human rights advocate who works in New York, Dr Alex de Waal, was quoted by The Telegraph on September 14, 2008 as saying: “By presenting his case in such stark terms, the Prosecutor has made it easy for his critics to dismiss him as ill informed and driven by a desire for publicity, and has made it harder for the advocates of justice in Darfur to pursue the challenge of calling to account those responsible for crimes no less heinous than genocide”.
What emerges from the reading of the issues raised against Ocampo by his critics is that he loves drama and publicity; he can be egoistic and dictatorial; and, he can bend the law to achieve his aims.
These character failings make me concerned when I remember his famous promise to make the Kenyan case an example to the rest of the world. It also makes me reconsider if Ocampo’s work in Kenya is credible especially in the light of the fiasco already surrounding it.
Firstly, it was Hon William Ruto’s spectacular claims that false witnesses were being used against him. The case of Lubanga tells me that it would not be beyond Ocampo to do so. If he could continue prosecuting the DRC warlord knowing very well that the man could be innocent, what would stop him taking witnesses he knows are not credible?
Now we have the case of the Provincial Police Officers (PPOs) and Provincial Commissioners (PCs) who are expected to give evidence on the police operations during the 2007 elections and the aftermath. I am now beginning to pay a keener interest in what they are saying when they accuse Ocampo of trying to trick them into incriminating themselves.
As the government co-operates with the International Criminal Court in the investigation of the post-election violence, it must keep in mind that Ocampo is not “the good guy” we have been assuming him to be. We need to interrogate his requests, his motives, and never forget his proven propensity to bend the law to achieve his aims.
Paul Mwangi is an advocate of the High Court of Kenya.