Why the Ocampo Six must vacate office

 

By MAKAU MUTUAPosted Saturday, January 8 2011 at 17:34

In Summary

• There is more at stake than the stigma: the new Constitution sets a very high bar for ethics and probity in public office

No one who is accused by a competent tribunal of crimes against humanity — which have similar elements as genocide — must be allowed to squat in public office. Noisy supporters of the Ocampo Six argue that they should not be sacked. Their logic is painful.

They say that President Omar al-Bashir of Sudan, a fugitive from justice, is still in office and sleeps in his own bed in Khartoum. These charlatans lack basic shame.

Since when did Mr Bashir, a man accused of genocide, war crimes, and crimes against humanity, become the standard by which Kenya should measure itself? Why have these MPs so callously forgotten the victims of post-election violence and the IDPs?

I am sure the Ocampo Six are living a terrifying nightmare. If convicted by the ICC, they could face maximum jail terms of 30 years to life. That’s why it behoves them to drop everything and fully concentrate on their own defence.

It’s improper for Deputy Prime Minister Uhuru Kenyatta, former Industrialisation minister Henry Kosgey, Head of Civil Service Francis Muthaura, and Post-Master General Hussein Ali to cling to office.

Eldoret North MP William Ruto should resign and Kass FM’s Joshua arap Sang should be fired. The Ocampo Six must immediately vacate office out of ethics.

My crystal ball tells me they could use their influential positions or State resources to frustrate investigations.

President Mwai Kibaki recently said that it was “premature” to ask the public officials to quit. It is clear to me that President Kibaki and PNU don’t really get the gravity of the matter. ODM must officially disown the Ocampo Six.

It is unacceptable for ODM to claim “solidarity” with Mr Kosgey and vow to “support” him as he fights the ICC charges. I applaud PM Raila Odinga for rejecting Parliament’s motion to pull Kenya out of the ICC.

But was Mr Odinga speaking for himself, or ODM? The party needs to take an unequivocal official public position on the ICC. Otherwise, we are entitled to suspect that both PNU and ODM are circling wagons to defend impunity.

Let us game this out. How will Mr Kenyatta, the Finance minister, perform his duties with Mr Moreno-Ocampo’s Sword of Damocles hanging over his head?

Heinous crimes

Imagine him at a meeting in Washington or the World Bank. Who would want to be seen in his company? Let me state it plainly. One becomes an international pariah once they are charged or indicted by the ICC for heinous crimes — crimes against humanity, genocide, or war crimes.

This is what President Kibaki and Mr Odinga must grasp. The game is up — they must cut their allies loose. The sooner they do so, the better.

Think of the enormous stress that Mr Muthaura must be under. How can foreign envoys deal with him going forward?

Even more importantly, will he have the fortitude and sobriety of mind to perform his duties at the inner sanctum of power while at the same time trying to save his own hide?

I personally do not believe that he can be effective. He may be there in body, but not in mind. That’s why it makes sense for him to step aside and pass the baton to someone else who is not distracted.

The country and the President deserve a fully engaged head of civil service and secretary to the Cabinet, not someone who is gasping for air.
But there’s more at stake.

The new Constitution sets a very high bar for ethics and probity in public office. The spirit and black letter law of the new dispensation would be offended if the public officials among the Ocampo Six demand to remain in office.

President Kibaki and PM Odinga must demonstrate to us that they understand the ethos of the new Constitution. They must show Mr Kenyatta, Mr Muthaura, Mr Kosgey, and Mr Ali the door. Allowing the four to keep on squatting in public office is an affront to Kenyans.

It offends our conscience as a nation. Public office mustn’t be treated as the entitlement of some, no matter how lofty their status.

There are real concerns that the public officials on the list of suspects could use their positions to tamper with evidence, plot against the ICC process, and subvert the search for justice.

Take Mr Muthaura, for example. Who is better placed than him to frustrate the ICC? He knows exactly what the government is doing to facilitate the ICC — including the location of witnesses, the collection of evidence, and the work of ICC officials in Kenya.

Why would he, now that he has been charged by the ICC, help Mr Moreno-Ocampo make the case against him? In my view, that alone is reason enough for Mr Muthaura to be removed from the nerve centre of power.

I have watched with interest — and satisfaction — as the political class squirms because of Mr Moreno-Ocampo’s zeal for justice. Don’t you find it utterly abominable that the political class is pooling resources to protect the suspects while the IDPs live in squalor in filthy camps?

What more evidence do we need that our leaders are predators? How hypocritical can they be to want to revert to a local tribunal which they rejected a year ago? The whole charade would be comical if it were not so sad.

The chickens have finally come home to roost. May Mr Moreno-Ocampo get every last one of them.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.