ICC not the international body needed to keep warlords in check

November 26, 2007. That is the date that finally shook my faith in the International Criminal Court and suggested for the first time that the institution might be a phantom that would end up crushing the hopes of the victims.

I arrived at The Hague in the third week of September 2011 as one of the two-thirds of Kenyans who opinion polls showed strongly supported the ICC process, seeing in it a chance to end the heedless greed and arrogance with which Kenyan politicians pursue power.

Having listened to all the proclamations from Luis Moreno-Ocampo on how he would make an example of the accused in the Kenya case and being thoroughly pumped up by briefings on how the prosecution had a water-tight case including, we were told, satellite imagery supplied by the Americans, I had sharpened my pen to cover one of the biggest stories Kenya has seen for decades.
When the prosecution opened its case, it became rapidly clear that they were a bunch of jokers.

Any sensible Kenyan would have advised them against proceeding with the case in the shape it was in when they took to the floor.

So Uhuru Kenyatta, scion of one of the wealthiest families in Kenya decided to meet the Mungiki to plan violence at a cafeteria on the busy ground floor of Yaya Centre?

The Mungiki were ferried to State House in City Hoppa buses to meet Kibaki and plan violence and the President then decided to call the head of the Presidential Press Service to attend the meeting? The most troublesome element of the prosecution’s case was the basic sequencing of events. According to the central theory on which Moreno-Ocampo’s case was built, the plans for the killings in Naivasha took place at State House on November 26 2007.

RETALIATORY ATTACKS

That was a full month before the disputed election and many weeks before the killings which prompted the retaliatory violence.

How the retaliatory violence was planned before the killings which prompted the horrific revenge murders and rapes by the Mungiki is a puzzle only the former prosecutor can resolve.

Still, at the time, much of the press decided to ignore the mounting evidence of prosecutorial incompetence mainly because of the genuine excitement around the fact the ICC was the only institution that had ever tried to take on hitherto untouchable Kenyan politicians.

We should have been far more critical, not least because the ICC’s prosecution team already had a lamentable record of bungling cases purely out of laziness.

On September 21 2011, for example, before the commencement of the pre-trial hearings in the Kenyatta, Ali and Muthaura case, Brigid Inder of the Women’s Initiative for Gender Justice held a press conference where she criticised Moreno-Ocampo for his poor record when it came to prosecuting gender-based violence, which demands a higher standard of proof than other crimes and requires detailed forensic work by investigators.   

OUTSOURCED WORK

She demanded that the Prosecutor “carry out more primary investigations before relying on secondary sources rather than relying on secondary sources and then conducting investigations”.

This would become a theme of the Kenya cases after it emerged that the prosecution had again outsourced the bulk of its work in the country.

Before the Kenya matter came before the court, in the case against the alleged Sudanese warlord Bahr Abu Garda, judges had dismissed the case as a “waste of judicial resources” and found “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”.

This prompted veteran journalist and film maker Julie Flint, who had followed the case until it was dismissed in October 2009, to call for substantial changes at the ICC: “It is an astonishing tale of incoherence, inconsistency and poor legal practice, surely unprecedented in a court of this stature.”

It would be naïve to dismiss out of hand the prosecution’s contention that witnesses were bribed or bumped off. But anyone who followed the Kenyatta case will also acknowledge that the prosecution did itself no favours by assembling a case that was so manifestly weak it would not have lasted more than a few weeks in any serious judicial system. The world––and Africa––still needs an international judicial mechanism to check warlords local courts will not touch. But the Kenya case has shown in harsh light the fact that this court is not fit for that purpose.

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