True to form and character, Kenya’s perennial AG Amos Wako abused his power and misused public funds to retain and instruct two British lawyers for the Ocampo Six. The two must have been paid tens of millions of shillings of our money without our permission to say what some of us have been saying for more than two years: that the ICC is the only credible judicial process to try those with the greatest responsibility for the post-election violence. Now, they will be paid close to a billion Shillings of our money to challenge the proceedings against the Ocampo Six. The Cabinet and Parliament did not authorize that expenditure.
A billion Kenya Shillings is enough to resettle the IDPs still languishing in camps. It’s criminal for the PNU/KKK faction within government to loot public coffers in order to protect the Ocampo Six. Not only is the Admissibility Challenge unauthorized; it has absolutely no chance of success. In their legal opinion dated March 12th, 2011, Sir Geoffrey Nice QC and Rodney Dixon state that the chance of success is close to nil.
Why then is the AG and PNU/KKK unlawfully spending one billion shillings of public money to file an application that has no chance of success? Obviously, the two British Barristers have covered their “behinds” well. By candidly stating that the application is essentially “dead on arrival”; they have warned their “clients” – whoever that is – not to expect a miracle. But the British Barristers are in business. They will not decline to be paid for engaging in a futile exercise. The only ethical wrinkle they must consider is the risk of being sued by any Kenyan citizen for acting on incompetent and illegitimate instructions and for what amounts to the exploitation of the vulnerable.
The merchants of impunity have stated that they dislike Moreno-Ocampo because he is both Caucasian and foreigner. But now, they have hired two British lawyers who are more foreign and Caucasian than Moreno-Ocampo. They are actually British! The “imperialist tag” the Ocampo Groupies have been hurling at the ICC will never stick. Some delusional commentators have even latched onto the fact that ICC Prosecutor’s last name starts with the letter “O;” the same letter as Obama and Odinga! Clearly, the retainer of the British lawyers now completely undermines any propaganda value that churish argument might have had. The clowns should have retained Mugabe’s or Ghaffi’s lawyers.
With the deferral ploy having been soundly defeated – after swallowing our hundreds of millions of our money without our permission - the merchants of impunity have raided the public till again. The Vice-President Kalonzo Musyoka, has already given Kanu-era justification for this impunity: “the President’s word is law.” It doesn’t matter what the Constitution says.
At both the AU and the UNSC, the merchants of impunity have argued that Kenya is a sovereign state that is capable of trying all the 2007/8 post-election cases including those facing the Ocampo six. It also argued that with the enactment of the new Constitution, our judiciary will be sufficiently reformed and able to handle all the cases; that allowing the ICC process to continue would be an admission that Kenya is a failed State. Ominously, they also threatened a breakdown in law, order and security, not just in Kenya, but in the entire region if the ICC tries the Ocampo Six.
This time around, the argument remains essentially the same, with an intriguing caveat. Based on the British lawyers’ opinion, they will emphasize that there have been “material change in circumstances”. To win, they need to convince the Court that the Kenya Police has been transformed and retrained into a professional, competent and ethical police service. The reality, however, is that the Kenya Police has become more trigger-happy than it was even in 2007. Cold blooded executions have been captured on video in broad daylight. Thousands of Kenyans have lost their lives due to extra judicial killings. No retraining has happened. But more significantly, there have been no credible investigations of the crimes. No credible investigations are going on. And none can be conducted by the Kenya Police who are heavily implicated in the same crimes. How then will the unlawfully retained and paid barristers convince the Court that things have changed?
If the PNU/KKK faction cannot even fire the former Police Commissioner Hussein Ali, the Head of the Civil Service, Secretary to the Cabinet and Chairman of the National Security Advisory Council Francis Muthaura and Uhuru Kenyatta from government – even after Ocampo wrote to request that this be done – how will they convince the Court that these alleged perpetrators will not use their influence, power and office to commit more crimes or interfere with investigations?
It would be imperative to prove not just that they have ceased having control over the police; but also that the “force” they allegedly used to commit those crimes is no more in terms of its leadership, operational structure and personnel.
This is a tall order. The Kenya Police remains essentially the same as it was in 2007/8. The current Police Commissioner was the head of the notorious GSU during that period. The head of the trigger-happy Administration Police was in the same position in 2007/8. The same applies to those in operational positions. So, nothing has materially changed. How will the merchants of impunity convince the ICC that it has reformed and is now capable of investigating itself?
Moreover, no credible investigations have been conducted against the Ocampo 6. None can be conducted against them anyway. Muthaura, Ali and Uhuru Kenyatta remain too powerful for anyone to imagine that they can be investigated, leave alone tried at this time. Even the media have published pictures showing the current Police Commissioner saluting Muthaura in public functions.
There is no independent prosecutorial authority. No reformed, competent and ethical judiciary. No independent local tribunal that meets international standards. Yet, the tribal and ethnic lords that have thrive on ethnic cleansings, grand corruption and human rights abuses as the foundation of their power have cynically pretended to have become “peace makers” and “dispute resolution experts.”
With no credible investigations; no genuine prosecutions; and with the three of the Ocampo 6 trying to appoint a Chief Justice, Director of Public Prosecutions, Attorney General and Judges that are supposed to try them; how will the British lawyers convince the ICC that we are capable of rendering justice?
Miguna is the PM’s advisor on Coalition Affairs. The views expressed here are his own.
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