The ICC has been
on a back foot lately. Accusations of bias hammered at every forum attended by
African leaders on the continent and abroad, and writings and opinion pieces by
African and other international scholars have been a la mode! Lecture halls and public rallies’ podiums in Kenya and
other parts of the continent have been reduced to a castigation of the ICC as
neo-colonial and overtly biased. The discussions and counter discussions which
are unlikely to end soon have been tied in with the general declared war against
afro-pessimism and a call for African renaissance that has taken center stage
giving it a fair share of talk time.
This coupled
with the apparent fumbling characterized by the manner in which the Court has
handled its cases lately most notably the Kenyan Cases – the seemingly
unprofessional gathering of evidence, claims of witness coaching and intimidation
among other things has greatly muddied the Court’s image even at its most
genuine self.
These issues may
not have deterred the Court from carrying out its mandate but it has certainly
been a wakeup call to them. The claims of alleged witness intimidation in the
Kenyan Cases by the accused – especially the President and his deputy, leading
to recanting of statements and hostility towards the Court even by some victims
hasn’t made its work easier.
For some time
now, the court has looked as though it fights with its hands tied to its back.
News item after news item has delivered information of recanting of statements
by prosecution witnesses. Emotions and alignments aside, it is always sad –
depressing in fact - for a lawyer anywhere in the world when after meticulously
preparing a case including preparing witnesses to give air-tight testimony, the
witnesses start falling by the wayside one by one before the trial date or even
worse the witnesses turning ‘hostile’. Some cases have seen defence or
prosecution witnesses give evidence in favour of their adversaries.
It has been such
a distraction for the Office of the Prosecutor who in addition to grappling
with questions about their conduct, have had to be on the lookout for persons
alleged to be bribing and intimidating witnesses.
It is therefore
no surprise that the ICC decided to issue arrest warrants against a Kenyan
Journalist to answer accusations of allegedly working in cahoots with or for the
Deputy President William Ruto to intimidate and bride witnesses into recanting
their testimonies. The ICC after much talk was certainly going to look for an
opportunity to send a message across.
The journalist,
Barasa, elaborately asserts in a lengthy Facebook post that the allegations –
now formal charges – are as a result of his refusal to cooperate with the Court.
He in fact refers to monetary incentives and constant communication with ICC
investigations, whom he names, as well as witnesses to the Kenyan cases. Even
as he seeks to exonerate himself which he says he is ready to do – instructing
a seasoned international criminal lawyer, he has fallen into the trap that has
plagued these cases since inception.
Playing to the public
gallery and utter disrespect of a judicial process has been a sad feature of
these cases. The ICC is a court of law – a court of justice in fact, mandated
to address and seek to redress the most serious crimes known to man. The claims
made out should be presented in court in the belief and confidence that the
Judges will impartially and objectively preside over the matter. The ‘road-side’
claims ought to be structured into evidence both for the hearing locally to
decide on whether the arrest warrants should be enforced and at the ICC in the
court room that has become all too familiar to our living rooms. The ‘He said…She
Said’ should be left for the trial because that is where it is most useful. The
High Court hearing is merely a procedural formality and I see no reason why the
warrants would not be enforced.
In the spirit of
complementarity, however, considering how much the ICC has on its plate, and to
dispel the notion that the court was purely established to intimidate and bully
Africans into submission, it would be wise for Bensouda to share evidence with
the Tobiko’s office to prosecute the journalist here. Obstruction of the
administration of justice is a crime here too.
As stated in the
ICC press release, the crimes tried are serious crimes of concern to the
international community – which Kenya is a part of – and which Kenya should be
concerned about as well – especially if it translates to a further injustice
for the victims. Whether that will reduce the outcry against the court for
declining to hear the cases here or in Arusha only time will tell.
It would be an
opportunity for the Kenyan government to prove that it still has the plight of
victims at heart and that it is willing to support the cases to their logical
conclusion. It would further be an opportune time for the Kenyan Courts to
prove the genuineness of the much celebrated transformation – the current
unfortunate issues plaguing it aside.
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