Five lessons we have come out with in the circus of trials in The Hague

Before the December 27, 2007 election, the abbreviation ICC in Kenyan newspapers was mainly to be found in the sports pages, describing the International Cricket Council.

The International Criminal Court became a household name after the bloodletting which followed and its involvement in the country has changed Kenya in ways both good and bad. Here are some lessons:

THE "WHITE MESSIAH" SYNDROME

Luis Moreno-Ocampo, with his tall stature, exotic accent and extravagant white beard, looks like an Old Testament prophet, which may be why local media gave him such slavishly sycophantic coverage when he swept into town.

His past missteps when, for example, a case against a Sudanese man, Bahr Abu Garda, led a judge to conclude that “the lacunae and shortcomings exposed by the mere factual assessment of the evidence are so basic and fundamental that the Chamber need not conduct a detailed analysis of the legal issues pertaining to the merits of the case,” were ignored.

Perhaps if the media had been more vigilant and cast the Kenya case as what it was — a massive test for the ICC rather than a simple cakewalk — perhaps the Office of the Prosecutor would have paid more attention in tackling the most high-profile “situation” in its short history.

In the end, all the praise lavished on Ocampo and the claims that he would miraculously “slay the monster of impunity” proved premature.

The cases his team produced have turned into a circus and, according to Judge Christine Van den Wyngaert, were “not even remotely ready” for trial.

THERE IS A PRICE FOR IMPUNITY

Mr Ocampo was interviewed on the BBC Hardtalk programme on Tuesday and claimed that the ICC had helped to curb the wilder instincts of Kenyan politicians and contributed to a peaceful election last time round.

At least on that point he is right. Mass killings have been a feature of the Kenyan political scene for a long time and politicians have often been a law unto themselves.

The ICC showed it can intervene and cause severe discomfort to suspects, a valuable service for potential victims around the world, which is why it would be singularly unwise for anyone to mull pulling out of the Rome Statute. The court just needs to be reformed.

COHESION AND THE COURT

In time, maybe the most consequential outcome of the ICC cases might be the disruption it caused to ethnic relations.

Before the suspects were named on December 15, 2010, it was a fair bet that the next president was going to be either the Kibaki camp’s man, Musalia Mudavadi, or Raila Odinga, the favourite who was only three percentage points off the 50 per cent mark in opinion polls.

Instead, the suspects list brought together the UhuRuto ticket which, for all its dynamism, was the wrong one to take office in 2013 above all because in a country like Kenya, which, in the words of the eminent historian Bethwell Ogot, is really a “multi-ethnic state”, it was simply not the best thing for a member of the Kikuyu community to succeed another one.

The ICC was the biggest factor that shaped the Kibaki succession.

REFORMING THE OTP AND THE ICC

The Office of the Prosecutor has undertaken to learn lessons from the shortcomings of its first decade and to adopt a new mode of investigations described in a strategy paper as involving “in-depth, open-ended investigations while maintaining focus” to mandate “deeper investigations without prematurely narrowing on a particular target, while at the same time guarding against limitless and unfocused inquiries that could waste resources and result in unmanageable cases. This new, adjusted approach should result in stronger cases supported by more substantial evidence.”

The effectiveness of the change will be known in time. But the Kenya case has left many “known unknowns…”

COMMUNAL RELATIONS IN RIFT VALLEY

If, as widely expected, the Uhuru Kenyatta case collapses, it will mean that there will now only be two, Kalenjin, suspects in The Hague.

This will give a new meaning to the debate about finding the right balance between justice, politics and peace, and what that does to communal relations in the Rift Valley remains an open question.

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