Why court may order the arrest of Ocampo Two

By MAKAU MUTUA
Posted  Saturday, April 23 2011 at 17:54

In Summary

• The court won’t permit itself to be diminished, delegitimised and pooh-poohed by Uhuru and Ruto

The Ocampo Two – Finance minister Uhuru Kenyatta and Eldoret North MP William Ruto – are behaving like blind mice. They just don’t get it. It’s an open secret that they are the prized catch at The Hague.

So why are they merrily dancing to what looks like their “political funeral”? It beats me, but I have a tentative hypothesis. Perhaps they believe their geese are cooked. If so, why not go down swinging? They feel they have nothing to lose.

But can Kenya afford their daredevil politics? The unequivocal answer is No. Which begs the question – what can the ICC do to call their bluff? Only one response is plausible – The Hague may have to order the two arrested immediately.

Distinct camps

The Ocampo Six have remarkably divided themselves into two distinct camps – the Ocampo Two and the Ocampo Four. The former is malignant while the latter is benign.

I need to commend the conduct of the Ocampo Four – Tinderet MP Henry Kosgey, Head of Civil Service Francis Muthaura, former Police Commissioner Hussein Ali, and radio journalist Joshua arap Sang.

These four – “the lesser” of the Ocampo Six – have comported themselves with dignity and decorum. They have acted with the proper humility of the accused.

I am sure The Hague has taken judicial notice of their good behaviour. This is not a small matter. As a lawyer, I would not be surprised if it influenced legal strategies going forward.

There are four reasons why the ICC may order the arrest of the Ocampo Two — substitute arrest warrants for summons — but spare the Ocampo Four.

The first is the impact of the Ocampo Two on political tensions in Kenya. The court has sternly warned the Ocampo Six against incitement and hate speech.

Since the Ocampo Four have been quiet, the warning was clearly meant for the Ocampo Two. Even to a layman, the bravado and braggadocio of the Ocampo Two has been stunning.

No one accused of crimes against humanity should have the gall to thumb their nose at the court. Yet that’s precisely what they have done. It’s simply unbelievable, and akin to a death wish.

Of the Ocampo Six, only Mr Kenyatta and Mr Ruto have been engaged in political mobilisation.

The question is why? Let us take, for example, the so-called “peace rallies” and “prayer meetings”.

Even a fool knows that “peace rallies” and “prayer meetings” are euphemisms for the mobilisation of ethnic alliances, and the isolation of PM Raila Odinga.

The so-called “G7 Alliance” is nothing if not an expansion of the PNU/KKK plot and confine Mr Odinga’s influence to Luo Nyanza.

A similar strategy plunged Kenya into a virtual civil war after the 2007 elections. That’s why the International Criminal Court is unlikely to stand by and watch passively.

The second reason The Hague is likely to issue arrest warrants for the Ocampo Two is to underscore the gravity of the charges and the solemnity of the judicial process.

Judges do not like being baited, bullied, or politicised. Mr Kenyatta and Mr Ruto would do well to remember that, as a young court, the ICC is anxious to prove itself. They would be foolhardy to let the court prove itself on their backs because of their belligerence and intransigence.

I have no doubt both the judges and ICC Prosecutor Luis Moreno-Ocampo won’t hesitate to bring down the hammer if that’s what it takes.

The court won’t permit itself to be diminished, delegitimised, and pooh-poohed by the Ocampo Two.

The third reason arrest warrants for the Ocampo Two are likely is because of the court’s distaste for impunity.

Mr Kenyatta and Mr Ruto need to be reminded that the ICC was set up to deal with “Big Men” who commit the most heinous crimes with impunity to capture or retain power.

That’s why suspects who act with impunity raise the court’s ire. By thumbing their nose at the court – and showing no remorse or compassion for the IDPs and victims – the Ocampo Two are setting themselves up.

What have they done to relieve the pain of the victims? It didn’t escape the court’s notice that the Ocampo Two brought dozens of MPs to “chant” ingloriously outside the ICC.

Chanting ingloriously

The fourth reason arrest warrants are likely is because of the power that the Ocampo Two have assumed within the State. This would send a message to the PNU wing of the coalition which controls the State.

There’s a strong perception that Mr Kenyatta is President Mwai Kibaki’s preferred successor. Many people believe that he – and Mr Ruto – are calling the shots at the inner sanctum of power.

It didn’t help matters that Mr Ruto was last week acquitted in a land fraud case because the State failed to call the key witness whom Mr Ruto had appointed to a plum parastatal position. If that doesn’t stink, tell me what does. This must have raised the court’s eyebrows.

Mr Kenyatta and Mr Ruto must know that humility is the better part of valour. We agree that they are innocent until proven guilty – beyond the shadow of a doubt. The ICC is a professional international court that will deliver justice, and justice only.

They need not panic if they are innocent, as they profess. Nor should they prepare the ground for another national cataclysm should they be found guilty. If they love Kenya – which they swear – then they should act like it. If not, the ICC may slap handcuffs on 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.