Monthly Archives: May 2013

Prosecutor and Victims Respond to Government of Kenya’s Submissions on Cooperation

The Prosecutor replied to the Attorney General’s arguments (in which he refutes accusations of non-cooperation with the ICC) by repeating her assertion that she has not received full and timely cooperation from the Kenyan Government. She also referred to the ‘anti-ICC’ climate that government officials have fostered in Kenya- which has affected the perceptions of witnesses and partners. Specific issues that the Prosecutor points to include:

1. A ‘strategy of delay’ with respect to the documentary evidence that the GoK was asked to provide, some of which documents has been pending from 1-3 years.

2. The GoK revealing confidential information through its submissions.

3. Where the Government has provided the requested evidence, key parts of it have been missing (such as National Security Advisory Committee Meetings minutes taken during relevant periods of the Post-Election violence), only for the GoK to then give the Accused access to the missing evidence that was denied to the Prosecutor.

4.Unnecessary redactions to the information that it gave to the Prosecutor.

5. Monitoring and Surveilling Prosecution investigators during their visits to Kenya, despite protests from the Prosecutor.

6. Government officials attempting to influence Prosecution witnesses.

7. Failing to facilitate interviews with Provincial commissioners and police officers- instead hiding behind a court injunction barring evidence taking for the ICC process, though the GoK failed to challenge the original injunction or appeal against it. Ironically, according to the Prosecutor, this did not prevent the same officers giving statements on behalf of the accused after the injunction was in place.

8. The Prosecutor finally argues that the GoK already knows the specific allegations of non-cooperation because of the numerous letters and emails exchanged between the OTP and AG. Therefore the AG’s request to the court that he be ‘put on notice’ about such allegations is moot.


Legal Representative Fergal Gaynor also responded to the AG and refuted the GoK’s claims that it adequately assisted PEV survivors who were IDPs. He points to reports by the Kenyan Parliament, the UN Special Rapporteur on IDPs and international human rights bodies that say otherwise.

He also notes that the failure to arrest Omar Al Bashir during his visit to Kenya is evidence that Kenya is not fully committed to its Rome Statute obligations.

The Legal Representative also noted the failure of the GoK to investigate and prosecute persons bearing the greatest responsibility for PEV.


The AU, its Jubilee and the ICC- An Anniversary to Forget?

Over the past week, the African Union held its 50th Anniversary celebrations. One of the wonderful features of the AU website is the posting of the speeches made by the founding OAU leaders at the opening of the Organisation of African Unity (predecessor to the African Union) in 1963. Here are a few quotes that I found very relevant:

“Let us not forget that we in Africa are part of the world. We have our international obligations as well. Whatever we do, we cannot isolate ourselves from the rest of the world.”- Alhaji Tafawa Balewa, Prime Minister of the Federation of Nigeria

“It is not enough that the union of our weaknesses [in the third world] should appear to be a force. It is not important to frighten people. The important thing is that we transform each of our weaknesses into strength, that we make of every African a man who eats and educates himself to his fullest…” Leopold Sedar Senghor, President of Senegal

As these speeches show, the past will always haunt us. And the current shuttle diplomacy on behalf of Kenyatta and Ruto (with Sang as the incidental beneficiary!) is full of actions that are ironic when one looks at the vision of Africa that the OAU founders had. These actions include: (1) Outlandish statements issued by our representatives in NY about Africa being targeted by the ICC Prosecutor- now extended to perpetuating the racist fear that an African country is perpetually on the tip of violence which can only be prevented by shielding its leaders (Ruto and Kenyatta) from legal process (2) A ruckus raised to create fear of a mass African exit from the ICC Treaty and (3) line the ducks in a row at the AU for an anti-colonialist protest- as though other international institutions who disagree with the AU position against the ICC are anti-African.

The particular duck I refer to is a throw-away line from Ethiopian PM Desalegn in his speech before the AU in which he accused the ICC of ‘hunting Africans’. Desalegn’s words were designed to manipulate our collective memory of the slave trade and the worst atrocities of colonialism. Previously it was ‘sovereignty and peace first’ that anti-Hague lobbyists had hoped would win hearts and minds by tapping into our African (perhaps even Pan-African) pride in order to permit the leaders of this continent their long-cherished impunity.

Of course, as George Kegoro of ICJ-Kenya recently suggested in an interview, the exaggerated language from the AU may not mean much more than posturing in order to force either the UN Security Council  or the ICC Assembly of State Parties to the negotiating table.

The ICC has already commented that the Resolution that the Assembly passed (condemning the court) has no weight in law. But one feels frustrated with the superficiality of our African leaders- is it that 34 heads of state blindly signed away their sovereignty to ratify the Rome Statute? The proceedings and substance of the Rome Statute were never secret. They were discussed openly in Ad Hoc committees, Preparatory meetings and the final Drafting conference in Rome. No one got ambushed by provisions regarding absence of head of state immunity nor by the requirement that giving priority to national prosecution would be possible only if the ICC were satisfied that genuine proceedings were actually happening in the state in question. As many already note, it was Africans who ‘self-referred’ the first situations to the ICC (DRC and Uganda). Equally no one was under any illusion that the world of international law and politics has traditionally been skewed against African and other post-colonial states. That was part of the reasoning behind the OAU, the AU and even the ICC; here were institutions that Africa had a stake in; paths to international justice in which the African footprint would be clearly visible; a joint effort towards just development whose growth and reach would benefit the continent.

If the ICC is ‘hunting Africans’ it’s only because 34 leaders on our continent gave it a ‘big game license’. Only Botswana’s President Ian Khama seems to have a clue as to what it was his country signed up to at the Rome Conference- he has been fairly consistent in stating his commitment to adhere to the ICC’s decisions, his country’s cooperation obligations and in urging his fellow heads of state to do the same. His reward is near-pariah status and enduring taunting by Julius Malema and Robert Mugabe. Never mind: there’s always a price to pay for moral courage.

The fact is that few people- least of all ICC supporters- can be happy about the court having to intervene so often on this continent. But this was never about liking- how can one like the fact that nearly 2 decades after the Rwandan Genocide and barely 10 years after the Congolese war, massacre, rape, and ethnic cleansing remain prevalent and unpunished locally? The reaction over 3 years ago when the ICC’s Prosecutor opened investigations into Kenya was not pride or celebration but relief. Relief that this was series of crimes that would not get swept under the spacious State House carpet like previous atrocities (Wagalla, Malka Mari 1992 clashes etc.)

Almost anyone with the will to do it can commit a single crime- but it takes leadership to organise others to commit mass crimes. Someone had to step up to the plate in confronting the leaders of impunity in Kenya’s PEV violence- with less than 4 convictions of ground level perpetrators, that someone was not the Kenya Government. Indeed, one thing you can take away from the recently released TJRC report is its continual criticism of the Government’s response to mass atrocity- in almost every case, survivors and witnesses were now old, ill, dead or dying and the GoK still barely moved a muscle (prior to the TJRC) to genuinely investigate and prosecute those involved in serious crimes against innocent Kenyans. This reluctance to follow through on justice is an abscess in the soul of the nation. The fate of Lari, Turbi and Mt. Elgon victims looks increasingly like the fate awaiting PEV survivors.

And so, even if somehow the accused can bend international law to do their bidding and have cases (illegally) terminated or referred back to Kenya, how does this create confidence that they will not also politically interfere with the cases locally? Could anyone say with confidence that having escaped an international court, the President and his Deputy would carry fewer ‘extra’ lives into our halls of justice than the cat-like Kamlesh Pattni? Won’t the abscess simply worsen?

I willingly accept that the ICC and its Prosecutor could have better handled the problems in the Kenya situation. Indeed this article details ways in which the court’s engagement with critics in Africa has in general been defensive, reactionary and inadequate. Equally the negligence and deficiencies highlighted within the Prosecutor’s office must be addressed (and are being addressed, according to the Prosecutor herself). This should be done with African involvement without jeopardising the current work of the court. If justice is imperfect then work to improve it; you can’t reform and strengthen a judicial institution by threatening to kill it politically.

The only message I could humbly send to the AU in relation to their recent resolution castigating the ICC is this: some of your concerns are legitimate but your motives are suspicious; be careful not to spit in the faces of victims of atrocity- they will not forget it.

Judge Wyngaert Replaced in the Kenya Cases

Judge Wyngaert asked the Presidency to excuse her from the Kenya cases. She cited her unprecedented workload. The Presidency (made up of the President of the Court and the two Vice-Presidents) agreed with her and issued a decision replacing Judge Wyngaert with Judge Robert Fremr. It is somewhat of a disappointment as Judge Wyngaert had already made her mark on proceedings and her views on modes of liability would have been of great interest in this case.

Judge Fremr, her replacement, is a Czech jurist who also served as a judge ad litem (a temporary judge or judge for only specific cases) in the International Criminal Tribunal for Rwanda. Before that, he worked as a Criminal Judge for over twenty years in Czechoslovakia (after 1993, in the Czech Republic). He was also briefly in the Czech Supreme Court.

I came upon a brief questionnaire that he answered when he was still a candidate for election to the ICC. In it, he talks about the institutional challenges of an international tribunal- particularly the need for efficiency and the complex and extensive casework that judges and the Prosecutor face. He also mentions that in the ICTR he faced some challenges similar to those ICC judges are up against- for example, “obstruction and stalling tactics” from parties. In the questionnaire, he states his desire that some ICC hearings should be held in an affected country “to shorten the “mental distance” between the ICC and the country concerned”. Judge Fremr also points to his long experience dealing with crimes of sexual violence- Rape as a crime against humanity is one of the charges against Uhuru Kenyatta. There’s lots more useful information in the questionnaire, not just about Judge Fremr but about how judges in general relate to the court in which they serve, how they prepare for new cases and postings, and how they interact with their colleagues and the parties.

ICC Defendant in London

Uhuru Kenyatta travelled to London this week to attend a conference on the future of Somalia. During the visit, he met with David Cameron about the ‘pivotal’ relationship between Kenya and the UK. Last month, Kenyatta met the Somali President in Mombasa, so it seems the London meeting had been building for a while behind the scenes. While a local NGO protested about the visit, the truth is that Kenyatta, unlike Al Bashir, the other ICC indicted President, can travel freely since the conditions of his Summons don’t restrict his movements outside Kenya . Al Bashir, on the other hand, is technically a fugitive from justice since there’s a warrant out for his arrest.

It’s arresting that the British PM is meeting Kenyatta at a time when the UK is struggling to close a dark chapter in its colonial history by trying to reach a settlement in a lawsuit filed by former Mau Mau fighters. Historians shall surely have fun drawing parallels between Kenyatta’s ‘personal challenges’ at the Hague and the UK’s public shame over its colonial crimes.

Regional efforts to prevent future ICC cases such as those facing Kenya’s leaders continue: we will know by end-month or early June whether the East African Court of Justice will get jurisdiction over Crimes against Humanity, Genocide and War Crimes. This endeavour was one of many launched to save ‘the Hague Six’ 2 years ago. Once the futility of preventing those cases from proceeding was apparent, it became a project to ensure that future international crimes in the region be tried closer to home (and presumably with ‘friendlier’ judges and prosecutors). Many have already pointed out that the EACJ is not institutionally designed as a criminal tribunal, but the race to halt the Hague is unfaltering.

Update May 09 2013: Kenya is still pushing for the UN to stop the ICC cases. This is according to a leaked letter supposedly written by Kenya’s Permanent Representative to the UN. The letter was meant for the President of the Security Council.

I’ve only seen excerpts but a few general comments can be made: under the Rome Statute, the powers of the Security Council to halt a case are quite limited. The SC can ask for a deferral under Article 16- but this is only for 12 months at a time, must be through a Chapter VII resolution and must be renewed on expiry.

According to the letter, Kenya is not asking for a deferral but for the ‘termination of proceedings’ which, I think, is quite beyond the Statute of the Court. However, the language in the letter, which calls Ruto and Kenyatta ‘the glue that binds the country’ and warns of violence in the region if the two are forced to face trial after winning the Presidential election, points to a subtext in which the Permanent Representative hints at the use of the Security Council’s broad powers under Chapter VII to halt the ICC proceedings as a threat to peace and security in the region (remember the perception of Kenya as a ‘pivot’ in East Africa). Such a SC Resolution might provide UN member states that are also parties to the Rome Statute with a justification through Article 103 of the UN Charter for avoiding their ICC treaty obligations. The letter excerpts, however, sound exaggerated, especially the bit about the glue. It’s worth remembering that the AG made a different argument about Kenya’s stability and progress in the fight against impunity in recent filings before the court; let’s see how far this goes…

Update May 23: The Kenya’s Permanent Representative to the UN attempted to defend the letter in a recent article– his defence, unfortunately, simply re-hashes the arguments in the letter rather than shedding light on why he thought it was a good idea. Furthermore, it’s difficult to take his response seriously when he says this:

“the main purposes of the ICC seem to be to advance the career interests of a handful of jurists and academics, and to enrich international law jurisprudence. I can see no reason to sacrifice the interests of Kenyans to such vain ends.”


The Permanent Representative may dislike the ICC’s choice of defendants, but fighting impunity is rarely academic. If anything, his efforts on behalf of the accused (though he claims it is on behalf of Kenya) show the necessity of the ICC where the political elite of a state are committed to using any and all means to quash a judicial process.


The Security Council invited Kenya to argue the merits of its request/demand that the Council act to terminate the Kenya Cases.

Recent Court Documents in the 2 ICC Kenya Cases 5 May 2013

The Kenyatta Defence made further complaints about the Prosecutor’s disclosure practices. This time, OTP-11 is the subject of concern. OTP-11 is a key witness to the alleged 30 December 2007 Statehouse meeting which, according to the Prosecution, Kenyatta attended; this and other meetings are part of the case for a common plan to perpetrate crimes in Naivasha and Nakuru. The defence feels that the Prosecutor unjustifiably delayed disclosing screening transcripts about OTP-11. According to Kenyatta, these transcripts contain evidence that potentially undermines the Prosecutor’s case- such as collusion and fabrication of evidence by OTP-11 and OTP-12. The Kenyatta defence had previously accused OTP-11 and OTP-12 of participating in an extortion attempt against the accused. The submission concludes by repeating the request to the Trial chamber to either terminate the case, stay proceedings or return the case back to the Pre-Trial Chamber to review the confirmation decision.

Nearly a month ago, the Chief Justice received a threatening letter allegedly sent by a group calling itself Mungiki Veterans Group.

The Prosecutor passed this letter to the Registry and the Registry attempted to bring this document to the attention of the Court on the basis that it concerned the overall security situation in Kenya. The Trial Chamber refused, however, to accept this filing, noting that it was improper for the Registry to simply pass on something that was given to it by a party to the proceedings. In addition the Registry did not specify what action it wanted the court to take as a result of this document nor did it show how this filing was part of the discharge of the function of the Registrar. The Court left open the possibility that in the event that the matter of the letter to the CJ needs further action, the Registry can file an application to the Trial Chamber using the proper procedure.

The Victims and Witnesses Unit filed an amended witness familiarisation protocol to implement the Trial Chamber’s decision on contact between parties and their witnesses.

Recent Court Documents in the 2 ICC Kenya Cases 30 April 2013

The Trial Chamber granted leave to the Kenya government to make submissions on the cooperation that it has provided to the ICC. Earlier this month the Attorney General had filed an application for leave, complaining about the Prosecutor’s accusation that her investigations were hampered by a lack of cooperation from the Kenya government. The parties to the proceeding as well as the Legal Representative have 14 days (from 24 April) to respond to the GoK’s submissions.

The Legal Representative for Victims in the Ruto, Sang case has responded to the application by Ruto to waive his presence during much of his upcoming trial (owing to his ‘workload’ as Deputy President). In his response, Wilfred Nderitu argues that the accused’s presence is not a right that he can choose simply to waive. Furthermore, in other cases where the accused’s absence was accepted, this was strictly for short periods and due to unavoidable circumstances. Finally, he concludes by noting that having accused absent from their own trials may lead to participation lethargy among the victims and a feeling that ICC proceedings are merely symbolic.

The Kenyatta defence team complained about 4 documents that they felt the Prosecutor failed to disclose to them in a timely manner. The documents allegedly show further inconsistencies and contradictions in infamous OTP-4’s evidence. The defence team wanted to file additional submissions to the court in light of this recently disclosed information.

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

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