Lubanga verdict has set pace for Kenyans’ cases

Otuma Ongalo

His may not have been a familiar name in Kenya but by now Thomas Lubanga must definitely ring a bell.

This man from the land of Ndombolo is whiling away time at the International Criminal Court while waiting to know whether he will spend 30 years or the rest of his life in jail for turning boys into murderous soldiers.

Lubanga, which means machete or simply panga among Kamukuywa folks and its environs, has stolen the thunder from prosecutor Louis Moreno-Ocampo’s famous vow that he would make Kenya’s post-election violence suspects an example to the world in the war against impunity.

ICC has just found him guilty of supplying ‘lubanga’ and other weapons to boys to cause mayhem in DRC.

He now earns the dubious distinction of being the first person ever to be convicted by ICC.

Specifically, he was found guilty of enlisting and using children under the age of 15 years for combat purposes while he served as political head of the Union of Congolese Patriots (UPC) rebel group. Many other charges had been preferred against him but were dismissed for failing to meet ICC threshold.

Kenya has been watching carefully the developments in The Hague. She has been watching because four of her citizens are awaiting trial at ICC and there have been relentless voices to ensure the truth on the unfortunate events of 2007/2008 chaos they have been accused of shall finally come out without fear or favour.

For many doubting Thomases that have been sceptical of the ICC ability to ensure justice for the accused and the victims, including yours truly, this week’s landmark verdict on Lubanga has been the answer.

It sets the pace for the cases facing Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Civil Service Head Francis Muthaura and radio journalist Joshua Sang.

For those who have expressed doubts about the credibility of witnesses, ICC has spoken in a trendsetting verdict that Kenyans will be watching keenly to ensure it was not an isolated case.

It has proved that contrary to widespread fears, it only allows evidence that is beyond reasonable doubt. Lubanga was accused of many crimes but evidence that proved wish washy was dismissed. He did himself in when he was caught on television camera addressing child soldiers but the judges were clear that they could not put him behind the bars based on hearsay.

They were harsh on the prosecution for shoddy investigations, coaching of witnesses and delay of the trial. The witnesses’ controversy has been at the centre of the Kenyan case. The accused and defence lawyers have repeatedly complained of the coaching of witnesses and some of the key witnesses have allegedly disowned their statements.

In the case of Lubanga, the ICC judges found out that six witnesses were fake and unreliable and some of the victims could not be depended upon and should be investigated.

The Ocampo Four defence should, therefore, face the ICC trial with confidence that if the witnesses lined against their clients are fake, they would be vindicated and set free. The bar of justice for both the accused and victims has already been raised and cannot be lowered depending on the suspects in the dock.

That Lubanga escaped some of the charges against him based on the prosecution’s reliance on intermediaries rather than independent investigations has a direct bearing on the Kenyan case.

Ocampo has been accused of relying on cut and paste works of partisan individuals and organisations, especially the Kenya National Commission on Human Rights. More significant is the issue of organisational command responsibility.

Uhuru and Muthaura and Ruto and Sang have been accused of having command responsibility over Mungiki and "Kalenjin Network", respectively.

The burden of proof whether the groups meet the definition of organised groups and whether Uhuru and Ruto were in charge of them is a riddle that Ocampo must unravel, the way it was proved that Lubanga was the overall commander of UPC’s armed wing. In short, there are no sacred cows in The Hague and ICC is no place for witch-hunt.