Monthly Archives: April 2013

Recent Court Documents in the 2 ICC Kenya Cases April 29 2013

The court clarified the rules it had set for contact with witnesses- the Witness Preparation Decision and Witness Preparation Protocol- by stating that any contact between a party and its witness less than 24 hours before testimony had to be ‘appropriate in the circumstances’ and with ‘due regard to professional responsibility’. Substantive witness preparation should have been completed before that 24 hour period. Once testimony begins, the only contact between parties and their witnesses will be at the Court Room, unless otherwise authorised by the court. The Victims and Witness Unit will handle any welfare and logistics for witnesses.

Karim Khan, Francis Muthaura’s lead lawyer is now co-lead counsel for William Ruto. His colleagues in the re-shuffled team are David Hooper and Kioko Kilukumi. In some of the filings, including the one below, I notice that Khan is designated as ‘lead counsel’, which might cause some confusion as to who is in charge of the team. While having co-leaders in a team of lawyers is known to happen, it can also lead to lack of coordination: there’s a quote I recall (attributed to a prosecutor in the OJ Simpson trial) to the effect that ‘co-lead counsel usually means no lead counsel’.

In addition to asking the court for Ruto’s presence via video-link and asking the court to permit him not to be continually present at trial, William Ruto’s defence team now ask the Trial Chamber to allow Ruto to waive his right to be present at trial. Under this application, Ruto would then only need to appear for opening and closing arguments, at the request of the Court, at any hearing he ‘chooses to attend’ and for judgement.


The Solitude of the Victims

“…The woman measured him with a long pitying look. “There haven’t been any dead here,” she said. “Since the time of your uncle, the colonel, nothing happened in Macondo.” In the three kitchens where Jose Arcadio Segundo stopped before reaching home they told him the same thing. “There haven’t been any dead.” He went through the small square by the station and he saw the fritter stands piled one on top of the other and he could find no trace of the massacre. The streets were deserted under the persistent rain and the houses locked up with no trace of life inside.” – Gabriel Garcia Marquez, A Hundred Years of Solitude

The context of this quote from Marquez’s famous fictional novel is a massacre of workers that had taken place, with the bodies having been dumped at sea. The lone survivor stumbles back to the scene of the crime, yet everyone- neighbours, police, his family- insists that the deed never occurred; as though one fine day, three thousand people decided to vanish all at once. This passage vividly captures the double injustice of impunity: both the original crime and the refusal to accept the existence or gravity of the crime.

The scene is reminiscent of the second burial of PEV victims under the wave of political reconciliation/political correctness countrywide. Their loss- measured in lives and property- dwindles into a speck. Their trauma is dismissed as exaggeration. Apart from the Hague Six, none of those alleged to have planned and led the killing have seen the inside of a courtroom. There is no official memorial- unlike for victims of terror attacks (the memorial to the 1998 Al-Qaeda attack is now an Nairobi landmark). And as for the dead…it’s as if 1,500 Kenyans spontaneously emigrated.

Update on the 2 ICC Kenya Cases 20 April 2013

The Government of Kenya, upset at being called uncooperative and being accused of helping the Muthaura case to collapse, applied to the court to make formal observations about its efforts to assist the court throughout these proceedings. The Government, through the Attorney General, felt that they were not given a fair opportunity to respond to the complaints from that the Prosecutor made about access to evidence when she dropped charges against Muthaura. The AG, in his application, listed a number of instances of actions the GoK took to facilitate the work of the court. He argues that Kenya has complied fully with its treaty obligations- specifically its cooperation obligations- and points out the Prosecutor has not referred any matter of non-cooperation to the Assembly of State parties, thus showing that her allegations carry no weight.

The Prosecutor has asked the court to deny the Kenyatta defence application for a stay or termination of the proceedings. They argue that the case against Kenyatta, subsequent to OTP-4’s withdrawal has not changed sufficiently to warrant any such remedy.

Is Kenyatta Kenya’s Kurt Waldheim?

At first glance this seems a little harsh. Waldheim was involved in one of the darkest moments in human history, accused of ordering massacres of non-combatants in the Balkans during the Second World War and even the deportation of Greek Jews to death camps. After the war, he was twice the Secretary General of the UN and was subsequently Austrian President. The crimes that Kenyatta stands accused of- though atrocious in themselves- probably do not fall into the same bracket of gravity. But as James Verini at Foreign Policy perceptively points out, the similarities in how the two leaders parlayed their infamy into electoral victories are too many to ignore. Here are just some of the surprising points of comparison:

  1. When Kurt Waldheim ran for the Presidency, his opponents within Austria as well as Canada and UK pressed hard in opposing his candidacy as a suspected international criminal. Though he was not indicted in any court, they mistakenly trusted to Austria’s ‘national conscience’ and underestimated Waldheim’s political skills. Instead of alienating Waldheim from the ordinary voter, his dark past pushed them together: Waldheim’s woes were seen more as an attempt by his political opponents (the Socialists) to get rid of a strong candidate than as serious charges to be met in court.
  2. Waldheim’s campaign team openly used the accusations of international crimes as campaign material, even alleging that there was a ‘foreign conspiracy’ emanating from New York to prevent him winning the Presidency. As Verini puts it: “Someone, maybe from Waldheim’s campaign, maybe just a fed-up citizen, posted flyers announcing “We Austrians Will Vote For Whom We Want!””
  3. It reminds me of the graffiti sprayed on Nairobi walls shortly after Kenyatta was summonsed: it featured a stencilled portrait of Uhuru and the tagline ‘tuko pamoja’ (we are with you).

  4. Even some of those persecuted by the Nazis (Jewish Austrians, resistance fighters etc.) appear to have voted for Waldheim because they “were tired of the hypocrisy of the campaign against him.” They also voted for him because they were tired of the past being constantly dredged up and just wanted Austria to move on.
  5. This has echoes of the PR about reconciliation and forgiveness that accompanied the Uhuruto merger.

  6. Waldheim, like Kenyatta won the Presidency handily.
  7. Waldheim’s woes won him sympathy from states and regions aggrieved by an international system seen to be dominated by the Western nations. The Soviet Union and Arab League states both extended warm welcomes to him. Even US ally Israel, where one might have expected the former Nazi to be a pariah, invited him to the country shortly before his death.
  8. Museveni’s speech at Kenyatta’s inauguration as well as AU efforts on behalf of the Hague suspects also follow a similar pattern.

There are, I think some notable differences as well (apart from the different eras in which the alleged crimes were committed).

  1. Unlike Austria in the 70s and 80s, Kenya is not dealing with a situation in which a large part of an entire generation was in one way or another implicated in atrocities (either enthusiastically voting for Nazi war criminals, serving Nazi institutions, joining the SS or simply being sympathetic towards their Anti-Semitism).
  2. Waldheim was neither indicted nor summonsed to any international tribunal, though he had been investigated by a UN war crimes tribunal. An international team of historians who reviewed his war-time service found no evidence that he was involved in the Balkan crimes; however, the historians found Waldheim’s claim that he knew nothing of the crimes ‘implausible’. Kenyatta, on the other hand, had crimes against humanity charges confirmed by a panel of 3 international judges and is about to go on trial (unless he absconds) before another panel of international judges.
  3. Waldheim had been useful for the US in its foreign policy objectives, especially during his time in the UN. But by the time he became Austrian President, the policy field had shifted, making it easier for the US to disown their one time ally. Kenya, under Kenyatta, remains important- though not irreplaceable- in the USA’s African policy. The US is less likely to take the most severe sanctions against Kenyatta unless they are really pushed to the wall.

This in itself is enough to make one stop and think about drawing too many conclusions from the comparison with a dead Austrian Nazi. But on a humorous note, Kenyatta’s supporters should take heed of how the then US president Ronald Reagan reportedly addressed the thorny Waldheim Presidency:

  1. Reagan sent Waldheim a note of congratulations.
  2. Reagan then ordered that Waldheim be added to a list of those banned from entering the US.

Ultimately, Kenya will outlast an embarrassing Presidency, as Austria outlasted Waldheim. But it still shows that history, memory, truth, justice and reconciliation are thorny blossoms that must be picked with care or blood shall surely flow. These blossoms cannot, however, be ignored. It seems that during this election many Kenyans mis-liked being told by the West how to pick their own bloody flowers. At some point though, we as a country will have to grasp these issues; better it be us than our children holding thorns.

New Anti-Hague Campaign?

According to The Nation, the new Deputy UN Ambassador had some unkind words about the ICC’s involvement in Kenya; is it the hatchings of a new wave of ‘shuttle’ diplomacy on behalf of the Defendants or simply a political appointee playing the tune of the piper paying her salary?

Inauguration of ICC defendants approaches

The inauguration of Kenya’s fourth President looms, and the signs are not promising for the ICC.

The Kenyan media have reported a great deal on the witness problems that the Prosecutor has supposedly been facing. The OTP has responded by condemning ‘sensationalist reports’ about witnesses cooperation.

Meanwhile, the credibility of the ICC with a large segment of the Kenyan public hangs in the balance as the flawed narrative that the Prosecutions were cooked up by local politicians to ‘fix’ Uhuruto remains deeply entrenched.

This has created a golden opportunity for associates of the accused to proceed with the debasement of the international criminal process. The latest report (allegedly sourced from a Sudanese newspaper) is that fugitive President Omar Al Bashir will attend the inauguration. This has not yet been confirmed by Kenyan Authorities, but given the secrecy that surrounded his last ‘surprise’ visit to Kenya in 2010, such a confirmation is unlikely. An Kenyan arrest warrant against the President remains in force (although there is a pending appeal against the High Court judgement that resulted in the warrant). The Kenyan warrant was issued after Al Bashir attended the Promulgation of the 2010 Constitution- that time, Kenya failed to abide by its treaty obligation pursuant to an ICC decision that required member states to deliver Al Bashir to the Hague if he enters their jurisdictions. How the ICC defendants (Ruto and Kenyatta) handle relations with the Sudanese President will be seen as a litmus test for their promised adherence to the ICC Rome Statute. Since arresting a sitting President is fraught with diplomatic peril, the two inaugurees should therefore make it clear to the organising committee that the Sudanese President would be less than welcome on this particular day.

Their supporters and associates will no doubt fall back on the argument that the South Sudan peace process depends on keeping relations with Khartoum sweet. The argument grows weaker each passing year as South Sudan’s embrace of statehood grows tighter (the final exchange of citizens between the two countries will soon conclude) and Sudan’s power over the destiny of it’s Southern neighbour diminishes. Even though there have been the border clashes and oil revenue stand-offs between the two Sudans after the South’s independence, these only serve to painfully reveal that peace between North and South depends upon good faith between Khartoum and Juba, not good relations with Nairobi.

By the way, it’s so easy to forget the third remaining defendant, Joshua Sang: perhaps he is quietly ruing the last minute support he threw in for Raila Odinga.


Update 09 April 2013: It appears that President Al Bashir decided to skip the inauguration ceremony after all. It still worrying that, according to the Government Spokesman, Al Bashir was in fact invited by the Committee for the Assumption of the Office of President.

How Should the ICC Treat Misconduct by The Prosecutor?

One of the key battlegrounds in the Kenyatta/Muthaura case is the serious allegations by the defence teams that the Prosecutor was at best incompetent and at worst misled the Pre-Trial Chamber as to the sufficiency of evidence. The saga over OTP-4, the witness who recanted (if you believe the defence) or was bribed by associates of the accused (if you believe the prosecutor), brought this issue to the foreground last month. Although in the end the Prosecutor conceded that the case against Muthaura could not continue after the failure of OTP-4’s evidence, the accusations of fraud made against the Prosecutor have not been withdrawn as far as I can tell.


These allegations, though unproven, raise the question of what remedies are available in the event that investigations reveal Prosecutorial misconduct. The defence teams tend to argue for an absolutist approach: dismissal of charges, acquittal, re-hearing of the case or full compensation. This position is understandable given that Defence counsel are protecting their clients’ interests. However, a recent academic article by Prof. Jenia Turner, ‘Policing International Prosecutors’, suggests that a more balanced approach by the court is possible. Such an approach might take more account of the needs of international justice, the rights of victims, the importance of ensuring a correct historical record and proportionality (the scale of the punishment should fit the scale of the misconduct). A discussion of the article and the matter of Prosecutorial Ethics is going on at Opinio Juris.

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

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