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Matters ICC: Ruminating on the Recently Unsealed Arrest Warrant



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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