Finally, he did it. Luis Moreno- Ocampo has revealed the names of the people he considers bear the greatest responsibility for the post-election violence in Kenya.
It is not clear whether this was the final list and it very well might not be. I would not be much surprised if several months from today, Mr Ocampo opens up another case or two and releases a new list of suspects.
Possibly the only name that elicited common shock after the list was released on Wednesday was that of the head of the civil service, Mr. Francis Muthaura. There was almost a public chorus saying, “Muthaura? You must be kidding me!”
For over the years, Mr. Muthaura has cut the image of a soft-spoken, self-effacing public servant who shies away from any controversy and acrimony. In fact, some
people call him “The Bishop”. His character does not match the allegations made against him, which he dismissed as “manifest nonsense”. It will be interesting to see how Mr. Ocampo makes his case against Mr. Muthaura, one of Kenya’s longest-serving civil servants.
Surprisingly, many Kenyans were shocked that Mr. Ocampo had finally filed the cases. I found the shock surprising because they had always known this was going to happen. It has been my belief that the Kenya case was a lifeline to the International Criminal Court at The Hague and that if it did not accept this case, it would have found itself idle come the year 2012.
But more than that, there are international interests that must save Kenya from itself. Were Kenya to go down, it would create problems in Sudan, Somalia, Uganda, Rwanda, Burundi and Congo. It would also affect the future stability of Tanzania and Ethiopia. Add to that the fact that we are the lifeline of Uganda, Rwanda, Burundi, East Congo and the almost imminent Republic of South Sudan.
Being in the middle of this international matrix, and consistently failing to address the violence that almost brought this country down, it is no wonder that international pressure is on the ICC to intervene. In this respect, there is still a very narrow but quickly shutting window of opportunity for us to have a local solution that is convincing to the international community.
Our friendly countries would not like to see us dragged to The Hague but they don’t have many options in this situation. The survival of our neighbours is tied to our stability.
There is disquiet, however, about the manner in which Mr Ocampo has proceeded with our case. For reasons yet unknown, he decided to release the names of the suspects before they have been indicted by the pre-trial chamber. He also decided to do so at an international press conference.
The best practice in prosecutions is to protect the reputations of persons who are suspects until they are indicted or irreversible decisions made to arrest and charge them. This best practice is meant to serve two purposes.
First, because a person under investigation could eventually be found to have no case to answer, it is unfair to taint their reputation on mere suspicions. Second and more important, pre-trial publicity is said to endanger the prospects of a fair trial. In the words of an eminent English judge, “it is possible, very effectually, to poison the fountain of justice before it begins to flow”.
Pre-trial publicity exposes the judges to materials that may not be in the indictment and to public reactions that they should not have to regard as they make their decision. Even our own Kenya Anti-Corruption Commission has over the years exercised this best practice by not naming any of its suspects until consent to prosecute has been granted by the Attorney-General.
If our KACC can observe this rule, its intriguing that Mr. Ocampo elected to ignore it. Although many politicians are accusing Mr. Ocampo of playing politics by wanting to destroy the reputations of some people, I think the purpose of the pre-trial publicity was to put pressure on the ICC judges to issue the indictments applied for.
When he applied for permission to start investigations on Kenya, one of the judges in the pre-trial chamber, Justice Hans-Peter Kaul, did not agree with Mr Ocampo. In his dissenting opinion, he said the crimes committed in Kenya did not qualify as crimes against humanity. He will be part of the bench that will make decisions on whether to issue indictments against the six suspects named by Mr. Ocampo.
Clearly, Mr. Ocampo’s chances with the pre-trial chamber could be 50:50. He must have seen it best to generate the publicity he did in order to put pressure on the judges to issue the indictments. Mr. Ocampo also loves drama and publicity – he’s a former television star in Argentina. He was not going to pass up the chance to perform on an international stage.
What bothered me most, however, is the reaction of US President Barack Obama. In his statement issued barely a few hours after the Ocampo press conference, he urged Kenyans to cooperate fully with the ICC investigation.
I found that disturbing because the US does not respect the ICC process. In fact, there exists in America an Act of Congress known as the American Service-Members Protection Act. Popularly known as the Hague Invasion Act, it authorizes the President to use “all means necessary and appropriated to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”.
Invading The Hague
It was given its nickname because it is not possible to carry out its objective without invading The Hague.
The bottom line is that President Obama is under a statutory obligation not to cooperate with the ICC. For him to tell us that we must fully cooperate with the ICC means that he believes there should be two standards of justice – one for Americans and another for Africans. And we must accept that while the ICC system is not good for Americans, it is perfect for us.
We really need to think seriously as Kenyans and address the issues facing us. We need to save ourselves from the international humiliation we are being subjected to but we also must address the genuine concerns of the international community. Mr. Ocampo will cease to be a thorn in our flesh when we stop walking barefoot.
Paul Mwangi is an advocate of the High Court of Kenya.