AU Addis meeting could well sound the death knell for the ICC

“There is no crueller tyranny than that which is perpetuated under the shield of law and in the name of justice,” said the French philosopher, Charles de Montesquieu.

Had the Chief Prosecutor of the International Criminal Court (ICC), Gambian lawyer Fatou Bensouda, taken this wisdom to heart, the court’s books in Africa would be balancing. Now, they are not.

Judging from debates within Kenya and the angry tone of the African Union’s January 2015 Summit in Addis Ababa, ubiquitously the ICC has become a byword for the cruellest judicial tyranny.

The Hague-based court is in a cusp, facing a serious rollback in Africa where it is widely perceived to be doing more harm than good in the name of ending impunity in a fragile continent.

The AU meeting in Ethiopia could well sound the death knell for the ICC.

Drawing from Kenya’s experience, the ICC is its own worst enemy. Unbridled judicial activism, blatant abuse of discretion and apparent incompetence of ICC’s omnipotent prosecutor have badly distorted the spheres of global justice.

Within Kenya, the recent debate was sparked by the insalubrious move by Bensouda to release the 73-page ICC prosecution’s “evidence” against President Uhuru Kenyatta after declaring a nolle prosequi in the botched ICC case that became a stillbirth.

This clear departure from time-honoured tradition in criminal trials across the world depicts an irredeemably corrupted court whose prosecutor abuses discretion.

The debate has three strands. One strand sees the ICC release of the Kenyatta dossier as a divide-and-destroy tactic.

As the US-based Kenyan lawyer, Regina Njogu, cogently argued, “for the court to order the release of the same (insufficient, unverifiable or unreliable) ‘evidence’ to a divided and mostly unsophisticated public is to stoke despondence” (Nation, 29/01/14).

Further, by unfairly using the ICC’s discretion to release evidence, Bensouda has succeeded in re-launching the failed trial of Kenyatta into the court of public opinion.

She has armed Kenyatta’s detractors with dubious “evidence,” thus potentially polarising the country.

'INCLUDED RAILA'

Inadvertently, the move was bound to draw fire on the ICC for its glaring failure to investigate and prosecute all those alleged to have masterminded the 2008 post-election violence, including former Prime Minister Raila Odinga.

In a 27-page tit-for-tat response, Mr Kenyatta’s counsel posited that the first draft of the Kenya National Commission on Human Rights report titled: On the Brink of the Precipice: A Human Rights Account of Kenya’s 2007 Post-Election Violence, “included Raila Odinga, the ODM leader, in the table of alleged post-election violence perpetrators, and recommended further investigations and his subsequent possible prosecution.”

But “ODM-sympathising top KNCHR officers ordered the report to be quashed. In the edited report, Raila Odinga was not included in the table recommending further investigation or prosecution,” said the lawyers.

The altered report is the pivot of the “regime-change” theory that posits that the ICC was part of a larger scheme involving a coalition of “evil society” within Kenya allied to Western interests that sought to block the Jubilee duo from capturing power while paving the way for Odinga to become Kenya’s fourth president.

Odinga has consistently denied the alleged alteration that saved him from prosecution.

But critics draw attention to his long history of association with the cases and technologies of political violence in Kenya.

Kenyatta’s defence cites a case where Odinga “incited people in Migori at a political rally by uttering the words, ‘we do not want madoadoa’ (a codeword for ethnic cleansing)”.

Could it be that the ICC has been hacking the wrong trees, closing its eyes and giving safe passage to the real masterminds of the 2007-2008 violence?

Be that as it may, as the case against the Deputy President edges towards a critical juncture, pressure is mounting on Odinga to take a public stand on Ruto’s trial and testify for him in his ICC case.

DOUBLE-EDGED BLADE

On January 27, 2015, a Ruto ally, Elgeyo-Marakwet Senator Kipchumba Murkomen, maintained that Odinga should demonstrate his statesmanship by standing with Ruto because he (Ruto) was his political lieutenant during the 2008 post-election crisis.

Murkomen’s invitation to Odinga is a double-edged blade that cuts both ways.

Shedding politics and standing with Ruto at this hour of need can help Odinga reclaim his 2007 Rift Valley constituency ahead of 2017; failure to do so can concretise the region’s perception that he is the supreme author of Ruto’s woes.

Ripples of Kenya’s angry debate on the ICC are felt at the pan-African scene. The country in late January carried the distinct message that the ICC trial against Deputy President Ruto is the remaining “threat to peace and stability.”

“Kenya’s peace and stability continues to be threatened by the ongoing prosecution of the Deputy President … which greatly undermines the gains that Kenya has made in the promotion of lasting peace, reconciliation and stability,” said the Foreign Affairs Cabinet Secretary Amina Mohammed.

Kenya is pushing for an impartial and non-political alternative to the ICC. At home, the Jubilee Coalition resolved during its recent retreat to sponsor two private bills in Parliament seeking to withdraw Kenya as a member of the Rome Statute.

Abroad, it has urged AU member states to sign the Malabo Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights” that seeks to empower the African Court of Justice and Human Rights to deal with international crimes.

Kenya’s power elite is trying to jettison ICC’s eye-for-an-eye type of “retributive justice” that privileges victims’ justice over the healing of post-conflict societies.

Prof Peter Kagwanja is the Chief Executive, Africa Policy Institute, and former Government Adviser.