Morris A. Anyah, Attorney-at-Law, is an exemplary courtroom lawyer. His stand-up performance during The Prosecutor v. Francis Karimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali was refreshing. He is meticulous, detailed, focused and unmoved.
Whenever Anyah took to the lectern, I knew that the submissions and cross-examinations will cut close to the borne. And they did; each and every time. Anyah made me proud of being an African and a lawyer. Unlike Muthaura’s lead counsel Karim Khan, Anyah neither fumbled nor rumbled. He was articulate and unflinching. He not only told off Khan, (“nobody will intimidate me!”); he also repeatedly reminded the court and the world of what the case is really about: the victims.
Granted, all the suspects are presumed innocent. They have the right to fair and impartial proceedings – and so far, that’s what they have been accorded. They are entitled to retain counsel of their choice and advance robust defence – and they have done so. Given their fabulous wealth and unfettered access to public resources (against our wishes), the suspects have hired the biggest guns money can buy.
However, the case is not about the suspects. No criminal justice system is. The case is and must remain about the innocent victims. Whereas the suspects can speak for themselves and hire the most expensive lawyers to defend them; the victims cannot. Unfortunately, the thousands of victims – the more than 1,500 dead, the hundreds of thousands displaced, those maimed, raped and severely injured – cannot speak for themselves. They are either dead or too physically, mentally and psychologically fragile. Those who don’t fall into any of these categories are too financially ruined to afford counsel of their choice.
Many a time, court appointed lawyers don’t take their work with the type of keenness and gusto with which the two victims’ counsels in the Kenyan cases have. But unlike Ms. Chana in The Prosecutor v. Ruto et al case, Mr. Anyah sours above everyone else. With his weight and face slightly tilted to the left of the courtroom, he delivers his questions eloquent precision.
“Madam President, Your Honours! I wish to submit that my clients – the 222 or so victims in this case – have expressed great concern regarding the statement His Excellency President Kibaki delivered in defence of Mr. Muthaura. The victims are concerned that the President of the Republic of Kenya, who is supposed to be the president of all Kenyans, has chosen to support a suspect in this case...” That was marvellous. Anyah brought the roof down on all the suspects and the grand coalition government. This was both timely and sobering.
When Mr. Khan stood up to respond, his voice quivered uncontrollably. He tried to argue that “Ambassador Muthaura has the right to be defended by anyone...” That “President Kibaki has the right to defend Ambassador Muthaura...” The argument was tiresome, circular and ineffective. Anyah had delivered the killer punch. A good defence counsel would not have touched that one. Realizing the tight corner they had been pushed to, Gen. Mohammed Hussein Ali’s lawyer, Evans Monari, marshalled his fading strength and preached about peace, national reconciliation and stability; nothing to do with the evidence, the law or the facts. There was visible panic on the defence side.
Yes, Kenyans yearn for, desire and are entitled to peace, stability, reconciliation and development. It is their right. But those Kenyans include Mr. Anyah’s clients – the victims. They, too, want peace, stability and development. Unfortunately for the victims, they cannot have peace unless and until those who victimised them can be identified, prosecuted, found guilty and punished. If impunity is not wrestled to the ground, the victims have no guarantee and faith that the perpetrators will not do it again.
The ICC investigations have identified the six prominent Kenyans as being ‘most responsible’ for the crimes against humanity that were committed in Kenya. There are others; thousands of middle and lower cadre perpetrators. They include leading businessmen, politicians and professionals who fundraised, donated, purchased weapons, transported the perpetrators and provided logistics. Members of the security forces, the Mungiki and other civilians were also involved.
But the ICC isn’t concerned about the lower cadre perpetrators. In fact, had the government and state not been involved or compromised, the ICC wouldn’t have been involved at all. The government has a constitutional duty to protect all Kenyans. It also has a duty to ensure that anyone who commits a crime is apprehended, tried and punished. It’s only through punishing criminals that we can deter crime. Yet, instead of conducting credible investigations and prosecuting perpetrators, the Attorney General and Director of Public Prosecutions spent our tax money to travel to The Hague in order to plead for “evidence” so that they can apprehend the lower-level perpetrators. The crimes were committed in Kenya by Kenyans. Is the AG and the DPP confessing that we are either unable or unwilling to deal with the criminals?
Ironically, as they were pleading with Ocampo to give them evidence, the suspects were repeatedly and falsely arguing in court about the “professionalism, competence and hard work of the men and women in uniform.” Admittedly, not every police officer is corrupt and incompetent. But it is equally true they cannot investigate and arrest wealthy and powerful people. All senior officers are beholden to those who appointed them.
Muthaura signs all appointment letters for ministers, permanent secretaries, heads of state corporations, PCs, DCs, – even heads of police, military and national intelligence. Who said he wasn’t powerful. It also needs mentioning that State House occupies more than 100 acres. Numerous meetings can occur simultaneously there without attendees knowing what’s going on at the other end.
Finally, because of his knowledge, ability, courage and stamina – and for standing up for the victims - I propose Morris A. Anyah as the next Chief Prosecutor of the ICC. Any seconders?
Miguna Miguna is a Barrister & Solicitor in Canada. He is also an Advocate of the High Court of Kenya.
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