Useful lessons from ICC for Ocampo Four cases

By Kipkoech Tanui

Lawyers will have their story on the guilty verdict The Hague judges returned against Congolese warlord Thomas Lubanga but let us also have ours. From the carcass of this ruling we can glean useful lessons on the Kenyan case at ICC.

We start with the simplest; Lubanga’s case took seven years and because of issues Ocampo Four have raised against their crimes against humanity charges, it is possible theirs could take longer, especially since it involves more individuals and charges.

So, we could safely predict, barring any courtroom miracles, the cases against Uhuru Kenyatta and William Ruto, who are keen on stepping in President Kibaki’s shoes, could take longer than Lubanga’s.

So they could go past 2019.

Rope of power

We should have noticed ICC’s sword of justice cuts both ways, and that is why witnesses and victims deemed to have lied are to be investigated and probably tried if there is evidence against them.

This must be encouraging to the Ocampo Four who have questioned the veracity of claims and intentions of the witnesses, who they have dismissed as fake and "economic refugees" lured by stipends and promises of the good life thereafter.

Defence teams for the Kenyan suspects should now be stockpiling evidence to help them convince the judges they were listening to ‘false witnesses’. They must also remember that Judges can dissent on sections of the judgement or the way evidence was secured, but still meet and agree farther downstream on the verdict.

However, I guess for them it is easier to get a scapegoat, whose shadow they probably saw even in the Lubanga trial, than building a strong case especially against the so-called false witnesses and "manufactured evidence".

They also have to shatter claims they attended planning meetings — including the one Uhuru and Francis Muthaura allegedly held with Mungiki at State House and attended by President Kibaki, from whose hands the rope of power was then slipping fast. But you do not convince the court when all you have for witnesses are your tribesmen, subordinates and soothsayers!

Lubanga tried and lost but the Kenyan suspects have this unenviable task of proving to the court they did not belong to an organisation that shared a common plan. If they fail on this then Ocampo will on retirement have them for breakfast, lunch and dinner daily.

Lubanga as we know was a wealthy and educated man and when his Hema ethnic group faced attacks, including decapitations, he emerged as its leader and captained Patriotic Forces for the Liberation of Congo. To the Hema he is a hero, and let’s get it from his tribesman Jean-Baptiste Bongi: "What we want is for people to understand the conflict that happened here... when a hoard of people attacks you, your family, your friends, is it then wrong to defend yourself? There were massacres here, beheadings. How do you react to that? These people (at The Hague) don’t understand anything." Unfortunately, as may happen in Kenya, the Bongis of this world are not the ones who will write the judgement.

Now in situations like this you would understand why Uhuru was playing with the knife’s edge with his arrogant revelation he was "helping" his community during post-election violence. No one is saying these four gentlemen are guilty yet, that is the business of the court to decide, but the point is tribal interests and caucusing usually are the bedrock of offences under ICC jurisdiction.

Perhaps, that is why Ocampo clung to the straw of Mungiki in the case of Uhuru and Muthaura, and (Kalenjin) ‘Network’ in that of Ruto and Joshua arap Sang. Then curiously, the suspects have actually worked overtime to prove to the ICC they are tribal kings and you probably touch them at your own risk.

We also learn from Lubanga’s case that apart from getting you a dozen good lawyers, black and white, personal wealth accounts amount to nothing at The Hague. For if it were money, Lubanga who controlled Congo’s diamond mines would not have been at The Hague except to enjoy himself.

We also learn ICC does not care about local politics. You can be a king back home but at The Hague, they just see you as Dracula the Vampire, and so you always have to fight to prove you are not one. You also have to act like you are not one.

The moment you dash home, whip your community behind you, and froth in the mouth spitting epithets about ICC and your opponents, you may actually be confirming you are what they think you are.

Nothing special

But give it to Lubanga, even if he lost the case, he neither flaunted his wealth nor lost focus of the legal war. That’s why his defence team twice managed to stop Ocampo’s case.

Then there is this prayer thing. All I can say is we must remember that in all prayer there are two dimensions: the victims too are saying theirs, and God is the final determinant. So there’s nothing special there really.

Also, it does not matter who you think got you there, which in itself is like turning the course of River Nile, or whether the whole tribe is with you or you are president-in-waiting. What should matter is how you get out of the hole you are in and that can only be done through attacking the Prosecutor’s evidence in court.

Anything else is just digging that hole deeper using the tools of Early Man. If in doubt ask Henry Kosgey and Hussein Ali. But then again they are socialised to believe the saying that cowards live to fight another day is a fallacy crafted by cowards themselves.

The writer is Managing Editor, Daily Editions, at The Standard.

ktanui@standardmedia.co.ke