Saturday, October 15, 2011

Eyes on Kenya as state attempts to influence who will replace Ocampo in 2012

By Philo Ikonya

Right: The Deputy Prosecutor of The International Criminal Court, Gambian Fatou Bensouda, meets Africans in Oslo on 14th October 2011. In the picure, Philo Ikonya in exile from Kenya, and Benta H- Kenya.

The name of the Prosecutor of the International Criminal Court, ICC, Luis Moreno Ocampo sends shivers down the spines of some Kenyan politicians. But it is the hope of those who look for justice in the International Criminal Court. “We will go to Ocampo,” the people said when justice failed at home. And they did. Those called before the court as suspects regarding the planning and execution of violence after the 2007 election are in for days of anxiety. Could they hope for better times after Ocampo's tenure as Prosecutor is over in 2012? Some of them have dared think so and even began acting.  

Summoned to the Hague have been: Uhuru Kenyatta the finance minster, William Ruto, Eldoret MP and Henry Kosgey, Head of Opposition. The ex- Commissioner of Police Hussein Ali, Francis Muthaura the Cabinet Secretary and a radio journalist Joshua Sang too. The ICC is in the early part of interrogation and this part of the process will determine if the ICC will press charges against them regarding the use of a militia gang and the Kenya police to kill those who were opposed to Kibaki’s party.

There are many others in Kenya, not before the court who the name Ocampo scares the wits out of,  for he  has much in store in terms of evidence, the only thing that counts before the law. Ocampo is, much as some may dance at the airport at home each time they return from the Hague, very well equipped. In the conference, the Kenyan media was said to be misleading Kenyans when it gives great coverage to such sideshows as essential matters of the justice and protection of victims and witnesses require more attention. The return from an ICC session should be a sober matter. In Den Hague, the court has witnessed strange Kenyan's strange behaviour as suspects are escorted by large numbers. Kenyans have been advised to keep their expectation of justice from the court but to look to other organs to help towards a peaceful election in 2012 and in good time. Eyes are on Kenya. 

Post Election violence led to the deaths of 1 333 persons and may be more. Some 500 000 and upwards were displaced in days. Women were raped in great numbers. Genocide was at Kenya’s doorstep. Now some hope that as Ocampo’s term comes to an end next year, maybe things will change at the Hague. The ICC will not change in terms of its mandate and statute. 

Ocampo and the success of the ICC, said the Deputy Prosecutor Fatou Bensouda, A Gambian, speaking in Oslo “Is not to be judged by the number of prosecutions in his tenure which started in 2003, but by its impact. Bensouda was speaking at a conference organised by African Information and Development (ACID). She said she was happy that Africa is fully behind the ICC inspite of the propaganda that has been spread in an argument that the ICC is only after African failures. She took on such points and reduced them to sheer cheap talk as she referred to the Rome Protocol with great clarity. The meeting was opened by the South African Commissioner in Norway H. E.Sisulu, BR who always does Africans in Norway proud in her insistence on peace and justice. There are 55, 000 Africans in Norway.

          Luis Moreno Ocampo

Ocampo was elected by consensus in an Assembly of State Parties to the Rome protocol in April 2003. On that day he said:

 "I deeply hope that the horrors humanity has suffered during the 20th century will serve us as a painful lesson, and that the creation of the International Criminal Court will help us to prevent those atrocities from being repeated in the future."

The Kenyan politicians and others, summoned to the ICC hope that things could be different for them, without Ocampo at the ICC. That way they think, one of them, Uhuru Kenyatta would be elected president of Kenya.

First they got many to use the propaganda that this court was western and only going for Africans. Then they got the AU and Gadaffi to try and help them out. The Arab Spring undid all the work they had put in. Some including Kenya's president Kibaki, had earlier suggested that they unsign the Rome Statute as did Sudan, Jordan and the United States of America in the past. This did not work. The Bush Administration unsigned the U.S.A. in May 2002.The effort Kenya made to get the UN Security Council to enforce a deferral on their case failed too.

Civilians can impact the ICC

It is to be noted that states that are not party to the Rome Statute can refer cases to the ICC as can civilians of any nation and also the UN Security Council. States that are not party to the Statute can be investigated by the ICC on the basis of the fact that it hosts citizens whose countries are party to the Rome Statute. 

Information received Friday 14th October, in Oslo while the Deputy Prosecutor Fatou Bensouda addressed the meeting on the topic: The ICC and Afrika, which way forward? indicated that some Kenyan politicians, led by the ones who are summoned to the Hague are doing their best to see that the next prosecutor will be someone who can sympathise with them.

They are thinking that since Ocampo’s term ends next year, their salvation would lie in a new prosecutor who would not be as determined as Ocampo has been on their case. They forget that there is a bench of judges and a plethora of other ‘cogs’ in this justice system.

        Will  justice be Africa's shield and defender?

Many judge Africa by the political leaders who fail the continent. A number of concientious African leaders, some of them who have died recently have left a legacy of peace and change in Africa. The name of the late Wangari Maathai, Nobel Peace Prize laureate and Tajudeen Rahman kept coming up in inspiring and positive comments. Botswana was singled out as a country that is not allowing justice to be tampered with in its strong support for the ICC.

The idea that Kenya will try to support a new male prosecutor from Africa as the one who takes over from Luis Moreno Ocampo and who will be malleable is base. It is not intelligent. Thequality of wisdom lacked in Kenya’s election gone awry. Kenyan leaders only looked at raw power, more votes and not at the law. Thousands of people were made to feel the nation as an ethnic reality were cheated into violence.  Those trying to influence the ICC’s Prosecutor’s succession do not know that the ICC is organising a number of things to cope with its duty. They are trying to get a possible candidate from a country neighbouring Kenya.

Do they know that the ICC has a very strong African personell and one of them is a Deputy Prosecutor in  Mrs. Fatou Bensouda? She has her eyes trained on peace and justice in the world.
It is about the law and ICC’s mandate, She says urging all to read the Rome Statute. She wants to see justice not being hampered by borders. Bensouda if one is to judge by a few hours with her yesterday is magnetic in her pull for justice. She told us that she feels the urgency for Afrika where women in many places have to choose between going to fetch water and be raped or having their husbands killed all because some people do not want justice and peace. Behind her vision is powerful international support. Voice and Vote has learned, she has support from a big number of countries in Afrika and around the globe.

She is focused, energetic and young. She is passionate about the urgency for justice for so many, especially women, in Afrika so abused in crimes against humanity. She was moved deeply when a man in the audience narrated the situation in Darfur and called on the ICC to continue its quest for justice in Sudan. She thinks of Dafur and other places where justice is not being done and sleep becomes a luxury. She is ready to work and reminds all that civilians can call upon the court.

Kenya is holding a General Election in 2012

But first she must hold her peace. Those summoned before the court have been warned to stop using tribal blocks of people to argue that the country is being treated unfairly or for political mileage. Uhuru Kenyatta has particularly been engaged during his own defence in blaming Raila Odinga, the current Prime Minister. Uhuru and Ruto are in an alliance with Kalonzo Musyoka to push one of them, Uhuru Kenyatta, with the backing of president Kibaki, for the presidency in 2012.  Kibaki terms are over.

When Uhuru keeps blaming Odinga saying that he is being crucified for Raila’s sins, what is happening to the people of Kenya is the widening of the ethnic rift between the Luo and the Kikuyu people which the British opened to an incredible degree in Kenya’s colonial days.Citizens must lead to end this abuse which politicians and colonial powers used to rule us.

The last election in 2007 ended up in a deadlock and a peace process had to be set in place. The ethnic card is played in the making of political parties and more viciously it was used in the tension and violence that ensued after the 2007 election.  

The eve of 2008 raged with violence. Kenya was on fire for the early months of that year. After the death of 1333, many rapes and abuses of human rights, the International Criminal Court swung in investigations not only because Kenya is a signatory to the Rome Statute but also because the the judiciary system had lost credibility. The Chief Justice then Gichuru, swore Kibaki in fast before Kenyans could rationalise the outcome.Only the local Kenya Broadcasting Corporation was allowed to televise in some instances.

It was Koffi Annan, Graca Machel and Benjamin Mkapa who camped in Kenya to bring the peace. Kenyan civil society was praised for the role it played at a difficult time. The International Crisis Group’s Nairobi office had sent in Comfort Ero who addressed the meeting. She said Kenya ‘ s  case the “saving grace” of the ICC.

The matter of a local tribunal to redress this had been debated in Kenya. A member of Parliament had worked on a bill which Parliament did not pass. The ICC begun work to see if some Kenyan authorities had committed a crime against humanity.


Kenyans may be in for a hard time. Organised violence because somebody did not win an election is deadly. The devil is in the planning. Whichever way this case goes, Kenya needs wisdom. The legacy of Wangari Maathai and Tajudeen Rahman should not go to waste. Kenyans must look at our ancestral deep roots of justice and peace and keep doors open to hope. It is not a case that will be easy.

The Deputy Prosecutor of the ICC Mrs Fatou Bensouda says that the ICC only moves on strong evidence and that Kenya’s case is not likely to be as easy as the Kenyan politicians seem to be thinking. “The ICC only moved because there is strong evidence against those who have been summoned,” She says.
Voices from the continent cried out to her. The voice of Darfur was present. Ethiopia and Eritrea too. The discussions on Ivory Coast and Liberia and Somalia were profound. One could not help but note that commitment to Africa is strong here. Africa’s must come to overflow.

In the conference, Her Excellency Sisulu spoke about Africa’s growing economy in many countries. She said African solutions must be found for Africa.  She regreted the loss of Wangari Maathai who died on September 25th but said that the 2011 Nobel Peace Prize has gone to two African women is encouraging.

She quoted a Chinese philospher on peace Lao Tzu (570- 490 B.C). His Holiness the Tibetan Dalai Lama, and Nobel Peace Prize winner 1989,  was denied a visa by the South African government recently. He had been invited to attend Nobel Peace Prize winner 1984 Desmond Tutu’s 80th birthday celebration on 6th October 2011.

Kenya had done that before quoting China as a trade partner. The big powers, China and the USA are not party to the Rome Statute. This, Comfort Ero said is the ICC’s single most significant problem. And yet, it is the easiest. It does not only a signature but the realisation that justice is indivisible. No justice, no peace. That humanity is threatened by those who would be violent. This wisdom has failed. Russia has signed but not ratified the Rome Statute according to Wikipedia.

Dr. Abiola Ogunsola, British born Nigerian lecturer at the University of East London and a feminist was articulate on women of Africa who said it is the place where the “I can!” spirit is fully alive. This is the spirit that leads African Foundation for Developm.nt, AFFORD, which she represented and which fosters that Africans abroad invest in Africa. It was touching to hear how Somalinas like Dr. Abdi Hassan are in a program which allows them six months of living in Somalia, a country he loves, to try and build peace and contribute to growth.

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