Uhuru lawyer draws fire for his attack on ICC’s integrity

Deputy Prime Minister Uhuru Kenyatta’s attorney has stirred the hornet’s nest with his claim that the Kenyan cases at the International Criminal Court were being fixed behind the scenes.

Mr Steven Kay, a veteran of the international tribunals, also appeared to cast doubt on the ability of “show trials” to offer justice to victims of mass crimes and suspects in his contribution at a public lecture in London a fortnight ago.

“Because they don’t like violence in elections in Africa, somebody has got to be made an example,” he told an audience at the School of Oriental and African Studies in London.

“They are saying we have a problem in Kenya, and we have to do something. Let us put a trial going and keep everybody quiet. That might be a good or bad reason but I, as I understand it, that is not what justice is all about.”

The British lawyer argued that international tribunals were fixed, hostile to suspects and guided by powerful forces out to “make some individuals an example” as part of the crusade against impunity.

“I think the fix is massive behind the scenes that we have to face. And I’m afraid I saw that in the organisational policy reasoning of Pre-Trial Chamber II on the Kenya case, because they stretched that definition in a way that no one had written about before.”

Newly-elected Law Society of Kenya chairman Eric Mutua described Mr Kay’s comments as “unfortunate, misguided and counterproductive”.

“Such comments, which call the integrity and independence of the ICC into question, may end up antagonising the institution and affect his client,” said Mr Mutua.

“Kay’s suggestion is that the ICC has a predetermined mind, and that is not correct. It is an independent court staffed by some of the most distinguished jurists in international criminal law,” said Mr Mutua, who sees Mr Kay’s comments as an attempt to rally public opinion against the court.

Mr Kay took aim at the court in a public panel discussion at the School of Oriental and African Studies in London on the topic “International Justice: Between Impunity and Show Trials’’.

Another lawyer, Alexander Eichener, said that Mr Kay’s statement was not only an attack against the integrity of the court but also its reputation.

“If you say that the court is fixing the trial, this means a consciously faked or influenced trial towards a pre-determined outcome; an illegal sham thus,” he said.

He explained that case-fixing can take two forms: acquitting somebody who is guilty or condemning an innocent suspect.

“The attack could lead to sanctions against Kay, and I would be quite astonished if the court would not start to contemplate some action against him,” said Mr Eichener.

However, a lawyer involved in the cases against four Kenyans, who requested not to be identified, defended Mr Kay, saying that, as an international institution, the ICC should accommodate criticism.

“This is probably one of the few institutions that has not been interrogated,” he said.

The ICC has indicted Mr Kenyatta, Mr Francis Muthaura, Mr William Ruto and Mr Joshua arap Sang for alleged crimes against humanity committed during the 2007/8 violence.

Foreign governments like the United States and Britain have supported the case, saying it was a milestone in the war on impunity.

However, Mr Kay holds that the campaign against impunity is being misused by governments and international human rights agencies.

“This crusade against impunity has given a device to governments to subvert the truth crusade and justice and provide something that goes against justice.”

But Ms Polina Levina, who was part of the team that worked on the case at the ICC prosecutor’s office, defended the court and rejected Mr Kay’s argument that the court does not serve the interests of victims.

She said that for Mr Kenyatta and Mr Ruto to appear before it, the ICC had achieved what no Kenyan court could do.

“For the first time, people who had enjoyed a semi-divine status and packaged themselves as untouchable were brought to answer before a judge and the message was sent that everybody was subordinate to the law.”

Finnish law scholar Martti Koskenniemi said every trial is political.

“Every trial affirms and re-affirms a structure of power and preferences in the world and, in some cases, the accused is probably innocent and the court guilty.”

Mr Kay is not the only lawyer in the Kenyan matter who has criticised the ICC.

Sir Geoffrey Nice, Queen’s Counsel, who, along with Mr Rodney Dixon, spearheaded Kenya’s admissibility challenge aimed at blocking the ICC cases, has argued that the courts established by the UN lack accountability and are vulnerable to influence by outside forces.

“All court systems that function well do so because they are well-supervised: by governments, parliaments and, most importantly, by a vigorous press … The UN is not a governmental institution willing to analyse critically the work of its courts. Within the UN, criticism is unwelcome,” he wrote in an article in the December 16, 2010 issue of the London Review of Books.

This is not the first time Mr Kay has raised questions about decisions of the court.

In the run-up to last year’s confirmation of charges hearing, he cried foul over the process — especially the limitation of witnesses to two — claiming it was being used to rubber-stamp charges against the Kenyan suspects

“The confirmation hearing should not be treated as a fait accompli,” he said.

Notably, Mr Kay’s remarks mirror Mr Kenyatta’s repeated comments at the various rallies during which he has called on foreigners to stop imposing leaders on Kenya through the ICC process.

Notably, ICC cases have considerably increased suspicion and resentment by Mr Ruto, Mr Kenyatta and allies, especially against America and Britain.

Anger greeted recent comments by British Foreign Affairs secretary William Hague that Kenya’s international standing and reputation could be soiled if elects individuals indicted by the ICC.

“No foreigner can tell me that he can tell Kenyans who to elect. Kenyans must be allowed to pick their leaders including the President. Democracy will not be achieved by pouring money into NGOs to wreck peace,” said Mr Kenyatta.

Members of the Kenyatta-Ruto axis have consistently voiced the odd argument that the ICC process was engineered to benefit their opponent, Prime Minister Raila Odinga, who is hoping to contest the presidency in the next election.

“We think (prosecutor Luis) Moreno-Ocampo has politicised this matter. There is a game being played, where some candidates are being knocked off to give room for other candidates in 2012,” argues Mr Njeru Githae, the acting Finance minister and Uhuru surrogate.

In response to the UK minister, aptly named Hague, Mr Ruto asked him to keep off Kenyan politics.

“We know whose messenger he is, but we want to tell him that Kenyans themselves have the ability to decide who they want to elect, and they do not need a foreigner to direct them.”

The same fears over the Western hand behind the ICC, partly fuelled the 2010 successful vote by MPs allied to the two suspects pushing for Kenya’s withdrawal from the Rome Statute.