ICC prosecutor is responsible for injustice to violence victims

Sunday February 21 2016

International Criminal Court Chief Prosecutor Ms Fatou Bensouda.  PHOTO | NATION MEDIA GROUP

International Criminal Court Chief Prosecutor Ms Fatou Bensouda. PHOTO | NATION MEDIA GROUP 

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After the Kofi Annan talks at the Serena in 2008, there were some arguments in our National Assembly about the formation of a local tribunal to try those who may be found to have had a hand in crimes against humanity.

Twice the proposal was presented to our parliamentarians and twice it was rejected. They preferred not to be “vague” and go to the “Hague”. We all know what has happened since.

I suppose it was easier at the time to talk about going to a far off court of law since at that time no names had been mentioned. Later, six individuals were named by the International Criminal Court as the people with the biggest responsibility in the violence. It was a curious list because it excluded the two main protagonists in the presidential race.

Anyway, at this point, only two out of the original six still stand accused. Friday the February 12 must have been a day of great joy for the two. The Appeal chamber of that court ruled that evidence that has been recanted cannot be admissible contrary to the prosecutor’s arguments that Rule 68 of the Statute allows such.

This judgment by the Appeal Judges did not only weaken the prosecutor’s case but it also restored some of the confidence in the international criminal justice system that had been eroded so much.


Whether the fight put up by the African Union had anything to do with this or not, the truth is that the case at the ICC is now standing on very shaky ground. We may of course never know who planned or executed what but one thing that is so clear is that the victims may never be given real justice.

I have talked about this matter severally in this column and probably made a few enemies in the process but I still hold dearly to what I have always believed and expressed.

We did not only bring this case upon ourselves but in my view it was necessary. Since 1992, people have been killed, others displaced and property destroyed and not even one single individual has ever been prosecuted. After these atrocities we just looked the other way and behaved as if nothing had happened.

It was necessary that it be made clear that even if we Kenyans are not interested in dealing with those who commit crimes against fellow human beings, the international community is watching. Anyone thinking of planning violence in the future will have to think twice.

The only problem in the present case is the manner in which investigations were carried and so the prosecutor and the investigators are responsible for the injustice to the victims.

Fr Wamugunda is dean of students, University of Nairobi; [email protected]