ICC victims’ lawyer accuses the government of protecting suspects

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FILE | NATION Mawingu IDP camp in Gilgil. A lawyer for violence victims at the International Criminal Court, Morris Anyah, is accusing the Kenya of protecting suspects. 

By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted  Saturday, March 3  2012 at  22:30

IN SUMMARY

Morris Anyah says the state was doing little to address the plight of the victims, and was instead trying to stop the case

A lawyer for violence victims at the International Criminal Court is accusing the Kenya Government of protecting suspects.

Mr Morris Anyah also dismissed the panel of lawyers set up to advise the government on the ICC matter saying its mandate was questionable. The lawyer represents 229 victims in the Mungiki case involving Deputy Prime Minister Uhuru Kenyatta and Mr Francis Muthaura who has stepped aside as the head of public service.

The two, who have been charged with crimes against humanity committed during the 2007/8 violence, are influential members of the PNU side of the grand coalition. (READ: Uhuru lawyer draws fire for his attack on ICC’s integrity)

While Mr Muthaura was President Kibaki’s most trusted civil servant and confidant, the power elite around the Head of State favour Mr Kenyatta to succeed him when he leaves State House after the next election.

During the confirmation of charges hearings, the President came to the defence of the two suspects. But the pre-trial judges dismissed a personal letter by President Kibaki distancing the two from a State House meeting at which the violence was allegedly planned.

In an interview with the Sunday Nation in Nairobi on Thursday, Mr Anyah accused the government of doing little to address the plight of the victims, instead making every effort to stop the trials which touch on its key officials. (READ: ICC Four may be tried pending appeal ruling)

The enemy

“The government is reacting to the ICC as if it is the Republic of Kenya and its people who are on trial. It is individuals. The government sees the process as the enemy and an attack on the Republic of Kenya,” he said.

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The American attorney spoke at the end of his two-week tour of the country during which he meet violence victims in Naivasha, Nakuru, Kisumu and Nairobi.

To illustrate the government’s attitude towards the ICC, Mr Anyah pointed out that it had more than once unsuccessfully challenged the admissibility of the case.

“There are questions about the mandate of the panel of lawyers set up to advise the government on the ICC matter,” he charged.

“Some of the lawyers involved were instrumental in the admissibility case seeking to stop the ICC engagement in Kenya.”

When the court, on January 23, committed the two to trial, Attorney -General Githu Muigai challenged calls for their resignation and established a panel of “eminent” lawyers to advise on Kenya’s response to the ruling. But the suspects succumbed to public pressure and left their offices.

Also committed to trial is Eldoret North MP William Ruto and journalist Joshua arap Sang.

Members of the Githu panel include Sir Geoffrey Nice and Mr Rodney Dixon who spearheaded Kenya’s failed court action to stop the ICC trials in 2009. And, in what has been seen by Kenyan lawyers in the panel as a self-serving exercise in futility, Mr Dixon has suggested that the government challenge the admissibility of the cases again.

“Such submissions would be consistent with the government’s position that Kenya is not a failed state, that it is committed to investigating all PEV allegations and that it has the capacity to do so,” he said.

But lawyer Paul Mwangi, the Prime Minister’s legal adviser who is a member of the panel, has rejected the idea saying it would be a waste of taxpayers’ money.

In addition to the admissibility challenge, the government in 2009 unleashed a diplomatic campaign in which Vice-President Kalonzo Musyoka and some Cabinet ministers toured key world capitals to persuade its leaders to rally behind Kenya’s effort to stop the cases. The well-oiled campaign hit a brick wall when the UN Security Council voted to reject it. Critics of the two processes saw them as an attempt to defeat justice for the victims and protect the suspects.

Mr Anyah reckons that the government has not demonstrated “sufficient empathy” in what the victims went through by seeking justice for those who lost relatives and property in the violence, helping them get basic needs and promoting reconciliation between communities.

“Where is the clamour to pass the Victims Protection Bill 2011? Where is the clamour to support the special tribunal Bill sponsored by MP (Gitobu) Imanyara to try middle-level offenders?” Anyah asked. He said Kenya’s conduct presents a challenge to the victims and their defence teams.

“The victims perceive themselves as little people pitted against powerful individuals. It is a David-versus-Goliath scenario,” he said.
The lawyer argues that justice cannot be rendered unless there is a mechanism to try middle-level perpetrators – the foot soldiers. And the special tribunal must have a reparation and compensation element and involve the victims.

He said the victims were pleased with the decision to commit the four suspects to trial but expressed concern over the prospect of a repeat of the violence if the issues that led to the violence are not addressed.

On the question of whether Mr Kenyatta should run for president in the next elections, Mr Anyah said that is be a decision for Kenyans.

The other challenge is increasing fatigue amongst victims because the ICC process is long.

“It is their level of comfort but victims are nervous about the prospect of someone about to face the ICC running for the presidency. They are saying they might find themselves in the worrisome situation of having to testify against such an individual.”

“The delays have resulted in lethargy and diminished enthusiasm towards the ICC. Our challenge is to keep them energised and hopeful that they are not a forgotten lot.”

Mr Anyah also took exception to recent comments by Mr Kenyatta’s lawyer, Mr Steven Kay, that powerful forces had fixed the case behind the scene. “Who is the fixer? The prosecutor or the Bench?”

Mr Anyah expressed disappointment with the decision by the Assembly of State Parties last December to cut the budget for legal aid by 1.5 million euros saying it would render the participation of victims in criminal proceedings before the court meaningless.

He said local NGOs had sounded the alarm over increasing anti-ICC rhetoric in “prayer” rallies organised by some of the suspects. 
“If statements in any way expose our clients to harm, we will bring it before the court,” he said.