Monthly Archives: March 2013

A Society Afraid of Itself?

Away from the ICC related matters for a moment to talk about the ubiquitous peace campaigns going on in Kenya.

From the Inter-religious counsel (IRCK) to the Federation of Kenyan Employers (FKE), every acronym worth naming (add NACADA, the GSU and an assortment of CSOs) has recently aired or published adverts calling for peace during the election period (unfortunately only the voting and counting are finished- the electoral process ain’t over ’til the Supreme Court sings).

Billboards abhoring violence pepper the towns. Every second ad on TV and radio informs us that violence is terrible. The newspaper pages are littered with ‘Amua Amani’ (choose peace) messages. No doubt Ad agencies made mad mullah. At least someone did, given the state of paralysis for the rest of the economy during these elections.

During the election season, Supermarkets did not re-stock- presumably a mitigation measure in the event of looting. Citizens stockpiled in anticipation of shortages if violence broke out. The Stock market was paralysed in the days running up to the poll; only to rally like a rocket when everything passed off peacefully.

We had over 90,000 police officers, prisons officers and national youth servicemen patrolling to keep the peace. Apparently a number of them are yet to be paid, leading to go-slows and riots among the disciplined forces. The Inspector-General recently had to plead for patience from his officers over delayed allowances for elections duty.

Not that Kenyans were prepared to accept any international speculation that this preoccupation with peace was excessive. Even a mild suggestion by a Washington Post contributor that the Kenyan press was self-censoring to avoid a repeat of the violence of 2007/8 led to a near-hysterical reply in a local daily. Apparently the backlash was sufficient that the original Post article is now ironically well hidden deep within the Washington Post internet site. This, however, paled in comparison to the reaction across Kenyan society to a CNN-aired clip suggesting youths from some ethnic groups were preparing for election violence (see here, here and here). Though CNN apologised for a misleading story banner, it stood by the actual piece.

Sideshows aside, the outbreak of peace after voting disappointed the doom-mongers. It seemed that the country would return to normal. But the respite from triumphant peace-mongers was short-lived; by Saturday last week, GSU were once again out in force to keep the peace in the capital as Raila Odinga’s lawyers filed a petition challenging the Uhuru Kenyatta’s victory.

Now, not only were media self-censoring for peace, but mobile telecoms got in on the act, censoring 300,000 of their customers’ text messages daily for inciting words such as ‘kill’. The National Cohesion and Integration Commission (or as I like to call them: Ministry of Love-thy-Neighbour) also announced that it was prosecuting 4 unnamed persons for spreading hate on social media. The acting Spokesman for the Administration Police Service was not left out, threatening lawful violence against any unlawful gathering, street parliament, or kamukunji near the Supreme Court building- as far the Police were concerned, the political season was over and these gatherings were creating unnecessary tension. Finally a blanket ban on political rallies went into effect this week as judges began listening to Odinga’s election petition.

This is a very brief overview of the type of anti-violence measures the nation has been living under this year. It felt at times like a state of siege; perhaps this was why there was almost a sense of victory at the prevalence of peace (so far) in these elections, even though that is what is supposed to happen in the ordinary course of events.

However imaginative and heartfelt the non-violence message was, as Dwight D. Eisenhower once said: “The best morale exists when you never hear the word mentioned. When you hear a lot of talk about it, it’s usually lousy.” One could say the same about peace. A peaceful society is likely to be one where peace is rarely discussed.

“How do you solve a problem like Uhuruto?”

A few months back, the UK High Commissioner stated that if Kenyatta and Ruto won the election, the UK would only maintain essential relations with their government. Now it seems that the High Commissioner’s government has just discovered that the entire relationship with the Government of Kenya is ‘essential’ to British interests, and must be fully maintained.

Joking aside, the threat of China displacing Britain as the Premier trading and development partner for Kenya seems to have UK MPs on edge. This came out in a debate on 20 March, in which both MPs and the Secretary for International Development were falling over themselves to make it clear that the UK was neither biased against a Kenyatta presidency nor seeking a change in diplomatic relations between the two states. The full Hansard (transcript) for that debate can be found here.

The dilemma for the UK is that its commercial interests, donor relations, anti-piracy policy, anti-terrorism policy and military training are all linked in some way to Kenya. In fact, the word used by one MP- pivotal- is more apt because Kenya is a hub and pivot for much of the Britain’s Africa/Middle East policy. As awkward as a Kenyatta presidency is for them, they would rather swallow that pill than allow the further spread of Chinese trade at the expense of British firms, or obstacles to the anti-piracy and anti-terorrism campaign due to a hostile government in Kenya.

One MP, Eric Joyce, suggested that the statement by Johnny Carson (the US Assistant Secretary of State for African Affairs) that ‘choices have consequences’ may have in fact helped Uhuru Kenyatta secure more votes. The same MP warned the House of Commons the UK is in danger of a ‘Zimbabwe Moment’ with Kenya i.e. a perception that White people are coming back to tell Black people how to run their countries. The Zimbabwe issue refers to the backlash from African states to UK policy towards Harare; Britain was seen as being in favour of the white settler farmers evicted by Mugabe’s government, ignoring the pain that economic sanctions caused other Zimbabweans.

When the Commons debate turned to the ICC, the MPs rehashed the same dull argument about only Africans being indicted. This time at least it was quickly refuted by contributors who took the floor. More worrying is that at least one MP took the issue of ‘compromised witnesses’ as an indication that the charges against Kenyatta hold no weight. The same MP went on to say that:

“[the UK relationship with Kenya] is not something that we can simply leave to technicalist and—I mean this in the nicest possible way—bureaucratic processes in The Hague that, even if they are legal, are disconnected from a wider political process.”

He’s right about the disconnect from the political process (both the ICC and the Prosecutor always stress this disconnect- though they see it as a good thing). But the Prosecutor has made it clear that Kenyatta will not be boarding the Muthaura bus to freedom- she will fight to get him to trial whereas she conceded the case against Muthaura. Kenyatta’s co-accused did not succeed on technicalities, but on a failure of evidence; the prosecutor believes that the quality of evidence in the Kenyatta case is sufficient where it was inadequate in Muthaura’s case. It would be interesting to see what the result for the UK would be if those ‘bureaucratic processes’ ended with UK (Uhuru Kenyatta) going on trial.

Wednesday’s Commons debate follows on the heels of Jendayi Frazer’s attack on Carson, her successor at the State Department. The two incidents demonstrate that the West (specifically the US and UK) is simply out of its depth with its policy towards the ICC and President-elect Kenyatta. The West would rather have someone else at State House, but it needs friendly relations with the Kenya government. On the other hand, the West would equally rather have someone else running Sudan, but the crucial difference is that it doesn’t really need to work with Al Bashir (who is under a warrant of arrest from the ICC) to achieve its geo-strategic aims. So it can afford to slap sanctions and travel bans on him and his advisors for refusing to cooperate with the court. It’s doubtful if the reaction will be so harsh if Kenyatta also decides that cooperation with the ICC is no longer obligatory. With China eager to pounce on any US/UK policy misstep (as it did in both Sudan and Zimbabwe), the ‘Kenyan pivot’ is simply too important in the short and medium term to abandon, even if ‘essential contacts’ continue.

Quick Updates on the Kenya cases

Lots has happened in the last week or so, I’ll give a brief summary.

We’ve received more clarity on the type of misconduct and specific allegations that the defence is making against the OTP’s lawyers (I remember wondering why Muthaura’s lawyers were so quick to hire a former OTP counsel to assist in the preparation of its defence; now I wonder no more). The defence teams filed recent documents detailing their accusations that the several members of the OTP team withheld crucial evidence. One defence team called it a ‘win at all costs’ attitude. Clearly in there Kenyatta/Muthaura case, there is a full-court press against the OTP: challenging its evidence, its case theory, its case preparation and the ethics of its lawyers.

The Trial Chamber held a status conference on 18 March. During the conference, the discussion was about the effect of the withdrawal of charges against Muthaura on the Kenyatta case. The Judges were interested to hear what the participants thought about the element of the common plan which must be proven for there to be indirect co-perpetration liability. In other words, if Kenyatta and Muthaura were charged as indirect co-perpetrators it means the OTP had to prove that each made essential contributions such that one or the other would have frustrated the common plan by failing to perform their essential part. Therefore, the defence argument is that if Muthaura’s essential contribution is unproven/non-existent, then it follows that the common plan theory must also fail and this fatally undermines the Kenyatta case (at least in relation to this mode of liability).

The Prosecutor challenges the ‘essential contribution’ test as well as whether the collapse of the case against one indirect co-perpetrator can directly affect the case against the others in such a significant way. She wants the focus to be Kenyatta’s contribution, not the absence of Muthaura’s contribution. It seems that Judge Wyngaert has her own reservations about the mode of liability called ‘indirect co-perpetration’ which she made clear in her separate opinion in the Ngudjolo case. However, she and the other judges offered the Prosecutor a potential get-out-of-jail card by asking whether they might consider trying Kenyatta as an indirect perpetrator (i.e. drop the need for common plan, joint control theory, etc. that comes with having a co-perpetrator).

Further written submissions will come and the Chamber will rule on what happens to the Kenyatta case.

 

In addition, the Trial Chamber has now officially accepted the dropping of the charges against Francis Muthaura

Finally, as if there were not enough developments this case, witness OTP-8 in the Ruto/Sang case apparently felt the pangs of a heavy conscience and decided to unburden it by revealing that testimony the witness gave against Mr. Ruto was untrue. Unlike the OTP-4 issue in Kenyatta/Muthaura which had been simmering since the confirmation proceedings (when the defence first publicly raised questions about OTP-4), one can’t help but see a correlation between OTP-8’s Damascus moment and the new political dispensation in Kenya. Perhaps the correlation is simply a coincidence. We shall see.

Muthaura Speaking of his Heartbreak

or check out this longer clip:

Kiraitu Murungi lost no time in grabbing a mile from the inch offered by the Prosecutor; he stated confidently that following the collapse of Muthaura’s case, the trials of Kenyatta and Ruto (who is facing a charges on a completely different transaction of crimes) would soon follow suit.

 

Also note that some of the media are wrongly calling it an ‘acquittal’.

Ouch!

Zapiro, the awarding winning and controversial South African cartoonist does it again:

 

Copyright Mail & Guardian Newspaper

Recent Court Documents in the 2 ICC Kenya Cases 13 March 2013

The VWU asked the Trial Chamber to clarify the witness protocol with regards to contact between the Parties and the witnesses that they intend to call. Link to the Ruto/Sang request here; link to the Kenyatta/Muthaura request here.

The Registry filed observations in the Ruto/Sang case on the request to shift the trial venue to East Africa. The observations are much the same as those that the registry made in the Kenyatta/Muthaura case, which I blogged about earlier. The Prosecutor also made her observations on this issue (largely repeating the issues of concern in her Kenyatta/Muthaura submissions.)

Guilt, Innocence and Post-Election Violence: Lessons from the ICTY

Marko Milanovic over at EJIL Talk! has analysed a recent Appeals Judgement by the International Criminal Tribunal for the Former Yugoslavia. The judgement acquitted Momcilo Perisic, a Croatian Serb, of aiding and abetting war crimes. In it, Milanovic notes that regardless of whether the Appeals Chamber was right or wrong in its reasoning, Serb nationalists are already using it to paint another piece of the narrative portrait of Serbian forces as wholly guiltless during the Yugoslav war of the 1990s.

A similar process in relation to Croat nationalists happened when a Croat general, Ante Gotovina, was acquitted on appeal a few months ago. Here is an excerpt from Milanovic’s piece:

“…what in my view makes [the Perisic judgement] even more unfortunate are its wider consequences, in particular in the solidification of official narratives of the warring parties in the former Yugoslavia  – and in that the Perisic and Gotovina acquittals are depressingly similar.  Even though both the trial and appellate judgments provide ample evidence of the enormous amount of support that the then FRY provided to the Croatian and Bosnian Serb separatists, the current Serbian government has decided to treat the Perisic acquittal as some kind of general exoneration of Serbia as a state for its involvement in mass atrocities in Bosnia and Croatia. It thus, for instance, decided to emulate the Croatian government, which had sent a state plane to pick Gotovina and Markac up from the Hague with a red carpet welcome in Zagreb upon their acquittal, and sent its own decrepit and barely airworthy jet for Perisic, who then grandstanded at a press conference at the Belgrade airport about the innocence of the Serbian state, people, and his own little self, to much applause from the Serbian press, officials and elites. And so, through an act of concerted political manipulation, the ICTY becomes an instrument for collectivizing innocence rather than for individualizing guilt, becoming indeed the opposite of what many of us had hoped it would be.” [emphasis mine]

I’ve highlighted this commentary because I think it’s highly relevant to what certain Kikuyu and Kalenjin politicians are attempting with regard to the ICC trials of Ruto, Sang, Kenyatta and Muthaura. While the Kenya cases do not involve warring parties or two ethnic states like Croatia and Serbia, the creation of ‘official narratives’ is well underway. Though the ICC has several times emphasised that Kikuyus and Kalenjins are not on trial, this does not suit the narrative of the politicians. They would rather feed the perception that both ethnic groups are being persecuted via these trials. The recently concluded elections showed how effective this can be in rallying voters. I expect the same kind of ethnic grandstanding of Serbian and Croat nationalists to be repeated if any of the Kenyan cases end in acquittal (or dropping of charges, in the case of Muthaura.). We got a small taste of it when the court refused to confirm charges against Henry Kosgey.

The creation of such official narratives of persecution will also help to deter Kenya itself from trying to investigate and prosecute others bearing the greatest responsibility for 2007/8 PEV. So for these politicians, it kills two birds with one stone.

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa