I am weeping for my country; heartbroken to see my motherland turned into a joke bag of the international community by a blundering clique of government legal advisers.
It began with the diplomatic initiative to get the United Nations Security Council to defer the Kenyan cases at the International Criminal Court in order to give us a chance to establish our local judicial mechanism to deal with the post-election violence cases.
Even before we had embarked on the shuttle diplomacy to campaign for the deferrals, the United States of America had announced that it would vote against our request. The United Kingdom also said it will not support us. France joined the fray and announced its opposition on our campaign. This did not stop us from insisting on the initiative. Ignoring the open positions taken by three veto-holding members of the United Nations Security Council, we proceeded to spent millions of shillings of taxpayers’ money to lobby for our foredoomed adventure. Eventually, however, the result was as we had been told all along; the initiative came a cropper.
We had not yet taken in this spectacular ﬁasco when we ran to the International Criminal Court at The Hague and attempted to get what we had failed to secure with the diplomatic initiative. Our Attorney-General, Mr Amos Wako, with two British lawyers of the distinguished order of Queen’s Counsel, Sir Geoﬀrey Nice and Mr Rodney Dixon, filed an application at The Hague challenging the admissibility of the Kenyan cases at the ICC.
The application, made under Article 17 of The Rome Statutes, argued that the cases against the Ocampo Six were not admissible at the ICC because they were already being investigated by the Kenya Government which has jurisdiction over them. Even before the application was filed, legal experts were warning Kenya to take its time before launching the challenge since the Rome Statutes allowed us only one shot at arguing against admissibility.
We were advised to first conclude those reforms we intended to undertake and also start credible investigations before taking our application before the court. As was the case with the shuttle diplomacy, we ignored all advice and ﬁled the admissibility challenge. It turned out to be a real theatre of the absurd.
Rather than show Pre-Trial Chamber II what we have done in investigating the post-election violence cases, we placed before the court threadbare and unbelievable promises and timelines of what we intend to do. The judges were to observe in their ruling: “It is apparent that the Government of Kenya, in its challenge, relied mainly on judicial reform actions and promises for future investigative activities. At the same time, while arguing that there are current initiatives, it presented no concrete evidence of such steps.”
To compound on the error, the promises made by the government were so irrational that they were comical. For instance, to answer the question whether the government was investigating cases at the same hierarchy as that preferred by the ICC prosecutor against the Ocampo Six, the government’s answer was
that it was going to begin by investigating and prosecuting the lower level perpetrators and then build its cases upwards to those that bear the greatest responsibility.
The ICC judges lamented and stated in their ruling: “The Chamber is surprised by such a statement which is actually an acknowledgement by the Government of Kenya that so far, the alleged investigations have not extended to those at the highest level of hierarchy, be it the … suspects subject to the court’s proceedings, or any other at the same level.”
What the judges came short of saying is that the government intended, once it succeeded in postponing admissibility, to spend its time prosecuting the lower level perpetrators and frustrate the investigation and prosecution of those who bear the greatest responsibility for the violence. “The Chamber believes that these arguments cast doubt on the will of the State to actually investigate the suspects …” the judges said in their ruling.
When it came to proving that there are ongoing investigations in Kenya, the government’s position was even more comical. The Chamber was furnished with a letter written by the Attorney General to the Commissioner of Police directing the latter to investigate all suspects of PEV cases, including the Ocampo Six. The letter, however, was dated April 14, 2011, two weeks after the Government ﬁled its application. “Thus it is clear from the letter that by the time the Government of Kenya ﬁled the application asserting that it was investigating the cases before the court, there were in fact no ongoing investigations,” the judges ruled.
Now the AG says that he shall appeal the ruling of the Chamber. The basis of the appeal is not that Kenya has a convincing case of how it is satisfactorily handling the PEV cases. Mr Wako says that he is appealing because Kenya was not given an oral hearing. Secondly, the AG says he is conﬁdent that by the time the appeal is heard, Kenya will have more reforms to show that the cases can be handled in Kenya.
Note that Mr Wako is not saying that an oral hearing would have given the government a chance to present a more convincing case. In fact, the AG is totally silent on the weakness of the government case as pointed out by the judges at the Pre-Trial Chamber. Neither is he promising to show the appeal court the conclusion of any investigations or the start of any prosecutions. He intends to just show reforms undertaken, despite the fact that this is totally irrelevant to the conditions set out by Article 17 of the Rome Statutes governing admissibility. So, why was the Vice-President insisting on the lame duck diplomatic initiatives? And why is the AG insisting on this ill-fated legal process? Who is advising the government that it needs to continue ﬂogging this dead horse? What magic does he hope to use to reverse the spectacular failures the country has suffered on both fronts?
I see two definite explanations. The first is that there are some people benefiting tremendously from these initiatives, either politically, financially or by way of exercise of influence over key government officers, particularly those that are real and potential suspects at The Hague.
By continuing with these initiatives, these people continue to remain relevant to the government and the political system and to retain their ability to manipulate both towards their desired selfish objectives.
Second explanation is that these initiatives are palliative. They are being conducted in the full knowledge of their hopeless ness but with the intention of keeping the Ocampo Six cheerful and hopeful pending their possible demise. More in the way cancer patients are put on morphine to lessen the unpleasantness of the disease.
Either way, it is wholly unfair to Kenya and to the Ocampo Six. It is costing Kenya a lot of money to keep up this charade which is being pursued without change of strategy even as it fails to achieve the desired results at every stage.
It is also a cruel misrepresentation of hope to the Ocampo Six. Rather than leave them to concentrate on initiatives that may actually assist them, the Ocampo Six are being kept busy pursuing continuously failing endeavours and may be left with little time to do anything useful when the reality becomes irrefutable.