Fatou Bensouda
Judge Chile Oboe-Osugi
President Uhuru Kenyatta and Deputy President William Ruto.
Away from the court itself, the President and his Deputy have organised a vast, multiple and far-flung reaction against the very fact of being the first state power incumbents to be prosecuted
Bensouda's nightmare
The International Criminal Court cases against President Uhuru Kenyatta and Deputy President William Ruto are fast approaching their nightmare phases.
They are a nightmare first of all for Chief Prosecutor Fatou Bensouda of the Gambia, who is now staring in the face some of the far-reaching implications and prospects of trying two members of an incumbent presidency who lead a fairly-advanced African nation.
They were not a nation’s chief executive officers when the ICC first pursued them, but they have been for some seven months now on the basis of a first five-year term renewable by re-election.
And they have launched a fight-back against the ICC that is much more than merely a defence in court.
Inside the ICC itself, both men have deployed the best legal defence that money can buy anywhere on the face of the planet. And these legal eagle teams, all of them veterans and experts of the international justice, war, conflict and post-conflict circuit, have unfurled a defence that has kept the formidable Office of the Prosecutor (OTP) and the entire ICC edifice on their toes continuously.
Away from the court itself, the President and his Deputy have organised a vast, multiple and far-flung reaction against the very fact of being the first state power incumbents to be prosecuted in this or any other jurisdiction.
The African Union, the United Nations, and the world’s multimedia news corporations have all been sucked into this vortex of reaction and resistance against a background of a threatened cessation of cooperation with the court by its African member states.
Whatever ultimately happens to these cases, when Bensouda, who was born the same year as President Uhuru, 1961, finally writes her memoirs, she will surely acknowledge that huge implications develop when suspects morph into democratically-elected heads of a functioning modern government.
Judge Eboe-Osuji moves to meet AU halfway
The first real sign of just how much pressure the Kenyan presidency has brought to bear on the ICC came not from Bensouda but from the apparently even more unflappable Judge Chile Eboe-Osuji of Nigeria who presides over the Ruto and radio journalist Joshua arap Sang cases and sits on Uhuru’s case.
In a lengthy “concurring separate opinion” attached to the court’s decision in Uhuru’s favour, Eboe-Osuji sought to justify why the views of heads of states and government should not be ignored in the court’s judicial work.
Eboe-Osuji readily acknowledged that the statements of African Presidents and other AU leaders gathered in Addis Ababa, Ethiopia, on October 11-12 influenced him to allow President Uhuru only an occasional presence in his trial.
The trial is still scheduled for a November 12 start.
The judge emphasized that the views of leaders of states often comprise state practice, a vital ingredient in the formation of customary international law.
He said the Vienna Convention on the Law of Treaties also requires the incorporation of such views when judges interpret treaties.
“It is, therefore, not only naïve for the judges and the prosecutor of this court to ignore the views of heads of state in important questions of the day in international affairs, but it is also possibly wrong, as a matter of law, to do so,” he concluded.
Referring specifically to the views of South African President Jacob Zuma and Ethiopian Prime Minister Haile Mariam Desalegn, who spoke passionately on President Uhuru’s behalf, Eboe-Osuji said they “should be taken into account in the present case”.
Eboe-Osuji even went so far as to invoke the opinion of one William Schabas, a jurisprudential expert of global eminence in international criminal law.
Finally, Eboe-Osuji gave the clearest indication yet that Deputy President Ruto may have some good news from the court at the end of the week, when the judge noted: “Notably, among African States Parties, who form the largest block of States Parties to the Rome Statute, there is, as noted earlier, evidence of an emergent trend of state practice in favour of discretion in a Trial Chamber to grant a Ruto relief".
The AU intervention which many politico-legal pundits in this region and around the world had dismissed offhand, as being of no consequence on the international and global stages, turned out to be one more nightmare scenario for Bensouda.
No ‘politically sterile environment’
Neither such analysts nor Bensouda had thought that they would ever live to see the day Judge Eboe-Osuji and fellow Judge Robert Frerr would concur in Chamber V that international law not only does not operate in a vacuum but that neither is it a “politically sterile environment”.
Eboe-Osuji opined that the court must not act as some kind of “automatic slot-machine, totally divorced from social and political realities of the international community”.
Above all, he pointed out, the AU nations, the African States Parties, form the largest bloc of State Parties to the Rome Statute, the instrument that established the ICC.
Bensouda’s sleepless nights did not end there. There was also the 38-page submission made on Thursday October 10 by President Uhuru’s lead lawyer, Stephen Kay. This document explicitly questioned the OTP’s and its agents’ conduct of the investigation and procurement of witnesses, as well as alleging interference with defence witnesses.
Kay urged that his client’s case be stopped with immediate effect. Failing this, Kay asked for a court session with live witnesses, ahead of the start of the trial, at which the prosecution would prove that the OTP, a number of witnesses, and a number of OTP agents, including lawyers, had behaved in such a manner as to fatally compromise the case.
The judges have yet to rule on this submission, but, when they do, and given Eboe-Osuji and Frerr’s ruling on the AU heads of state and government’s protest, Bensouda and her team are likely to come in for some of their most uncomfortable moments of an entire nightmare process.
Indeed, reports emerged midweek to the effect that the ICC has devised a new investigation strategy to address concerns on evidence gathering.
The Standard newspaper of Nairobi reported, tellingly, “Full details of the guidelines, sent to the ICC’s 122 member states last week, have yet to be released, but they focus on ways to ensure the Office of the Prosecutor . . . can present a watertight case at trial. A meeting of member states of ICC is scheduled from November 20-28 with suggestions delegates could press for amendments to the Rome Statute to reform the court given recent concerns about conduct of prosecution”.
Among other things, such dramatic developments are also a clear indication of just how young, as an institution, the ICC is. By November 20-28, the ICC trials of the two top members of the Kenyan Presidency are supposed to be well and truly under way, and yet the court is still working on ensuring that its Prosecutor does not start a trial without watertight evidence!
If the court did not realise the fact until now, it is unlikely ever to forget it: the trials of the members of the Kenyan presidency are also the ICC’s own baptism of fire. In other words, the ICC is also on trial, including in the court of global public opinion.
UHURU’S NIGHTMARE
For President Uhuru Kenyatta, whose trial at the ICC is scheduled to be barely a fortnight old by November 20-28, the man could be forgiven if he has the bizarre impression that he is being beckoned into a jurisprudential construction site while work is still in progress.
Whether he attends the start of his scheduled trial or not, or even whether Kenya, given very considerable wind assistance by the AU and others, can persuade the UN Security Council to intervene in the case definitively, a most interesting gathering of member-states of the ICC will be taking place at that time.
And this meeting, of all of the ICC’s 122 member states will, among other things, be looking anew at the court’s prosecutorial evidence gathering strategies.
According to the authoritative Institute for War and Peace Reporting, a new investigation strategy is due to be adopted by the court.
The institute describes its work as, “Amid war, dictatorship, and political transition, IWPR forges the skills and capacity of local journalism, strengthens local media institutions and engages with civil society and governments to ensure that information achieves impact.”
Among other things, the new strategy will address longstanding issues about evidence-gathering that have bedeviled multiple ICC trials.
Kenya cases ‘give ICC headaches’
The institute cites both the conviction of Congolese warlord Thomas Lubanga Dyila last year, the OTP’s only success thus far, and the ongoing Kenya cases which “have presented the ICC with headaches, with defence teams accusing the prosecution of using intermediaries who have falsified evidence”.
It notes that “President Uhuru Kenyatta has since filed an application seeking stoppage of his trial, citing collection of evidence by intermediaries who he claimed falsified testimony to implicate him”.
In a 38-page application aimed right at the heart of the OTP, Uhuru’s lead lawyer, Stephen Kay invoked the Lubanga trial to press a case for a review of the evidence. He accused the OTP of a raft of wrongdoing that adds up to a trial process that needs to be aborted before November 12. President Uhuru must occasionally wonder at the combination of factors, coincidences and imponderables that culminated in his becoming an ICC indictee with a case to answer. This “world court” not only still behaves like a construction site 15 years into its existence, it also wants to use him like a laboratory mouse in history’s first prosecution in international jurisdiction of an incumbent head of state and government.
When he rose to address the AU on October 12, President Uhuru referred to the court as a toy, the merest plaything, of declining imperial powers.
The quality of the President’s ICC nightmare is very different from that of Deputy President William Ruto and Chief Prosecutor Fatou Bensouda’s. In his off-the-cuff remarks in Kiswahili after delivering the prepared Address to the Nation in English on the occasion of Mashujaa Day, October 20, 2013, Uhuru referred to the ICC affair as "this issue that a few outsiders are trying to stick on him and Ruto". And then he assured his audience that it would soon disappear and involve the defeat of the Devil himself. The Nyayo Stadium crowd roared in applause.
In the meantime, before this vanishing and vanquishing can happen, whichever way the President turns, the ICC nightmare remains the 800kg gorilla in every room, including staterooms at State House.
When Judge Chile Eboe-Osuji caught most observers by complete surprise when he moved with alacrity to be seen to be responsive to the combined fury of the AU heads of state and governments gathered in Addis Ababa three weeks ago, the very best he seemed to be able to give Uhuru was the prospect of a suspended sentence.
From indictee to convictee President?
As the Star newspaper reported on Wednesday: “An International Criminal Court judge has hinted at the possibility of a ‘suspended’ sentence for President Uhuru Kenyatta and Deputy President William Ruto if a compromise is reached between the ICC and the African Union.
“Judge Chile Eboe-Osuji yesterday said if the positions of the AU and ICC judges are merged, it could result [in] ‘credits’ for the pair.
“The judge sits on the Uhuru case but is presiding over the Ruto trial.
“A suspended sentence means that if the two leaders are found guilty, they will only serve their term after they leave office”.
Several different levels of precedent-setting history are being set here and they boggle the mind. President Uhuru and Deputy President Ruto have suffered a world of protocol headaches as heads of government who happen to be ICC indictees. What on earth would an ICC convictee President and Deputy President be faced with?
Every mention in international media everywhere they went, even for treatment abroad of either themselves or close family and friends, would be prefaced with the fact of the conviction, complete with details of the suspended sentence. Protocol problems that cannot be foreseen today, for these are truly uncharted waters for everybody in the world, would kick in.
Supposing, for argument’s sake, that each man had a 30-year sentence awaiting him at the end of his first term, or even a 30-month sentence, or even no custodial sentence but a reparations rap to compensate the victims? Even with major appeals in the works before a different set of judges who might well want to quash the sentences, what would a convictee President and Deputy President do about a second term campaign attempt?
As indictees, the ICC did not stand in their path to vying for the presidency. As convictees, what would the end of their term be adjudged as? Would the interregnum of a campaign for an attempted second term count as a seamless continuation of their first term in office?
In other words, how many years would the ICC wait?
And what if Uhuru and Ruto hit on a Vladimir Putin/Dmitry Medvedev power pact routine, whereby one man serves as President of Russia and the other as Prime Minister and then exchange places in the next election cycle?
For President Uhuru, there cannot be two ways about the case now at The Hague – it had really better vanish, never to be seen again, and this had better happen very soon indeed. Any other in-between measures can only produce abominations. Even a year’s deferral only means that the whole process will still be there waiting – and such a year would pass as if the days themselves were turbo-charged.
RUTO’S NIGHTMARE
In the early stages of his own trial, for weeks on end now, as an incumbent of state power, Deputy President William Ruto has been to a place where his boss has no wish to venture.
And Ruto has experienced, first hand, something that Uhuru can only guess at: What it means to be accused by hooded and hidden witnesses, complete with digitally altered voices and heavily pixilated images.
Ordinary folk as witnesses
Ruto has suffered something else, a staple and a strategy of the ICC’s Office of the Prosecutor. Chief Prosecutor Fatou Bensouda has deployed only ordinary folk as witnesses against Ruto, so far. In Europe, this class of witness is widely considered to be especially believable, the salt of the earth.
The horrors Bensouda’s witnesses are reeling out in often hesitant and tremulous voices, almost as if the trauma of the events of the post-election violence haunts them to this very day, are also extremely compelling, and not only to a Western audience.
Ruto’s waking ICC nightmare is that Bensouda’s complement of hooded witnesses was not processed by the court alone. Evidence has been adduced in open court, on-camera and on open microphone to the effect that some of former President Kibaki’s closest and most strategic advisers deployed the machinery of State in gathering witnesses and evidence aimed specifically at fixing Ruto for good.
When the evidence against Ruto became a combination of the harvest of organs of state that are expert in all the dark arts of espionage and subterfuge, and Kenya’s activist civic sector, two sectors that rarely agree on anything, Ruto became snared, and has remained trapped, in a predicament that is very different from the President’s.
Ruto’s agony is magnified by the realisation that the OTP witnesses against him are mostly Kikuyu and the evidence they are adducing is painting both he and the Kalenjin in an extraordinarily dark light, particularly from a Western perspective.
Seated in Chamber V for hours on end for several weeks, Ruto is gathering knowledge, and as the Good Book also says, gathering pain. How will he explain to his grassroots this unfolding scenario after lifting himself to the very heights of political and state power and preeminence on a power pact based on the hatchet of the post-election violence between the Kikuyu and the Kalenjin being buried deep only to see it unearthed in the most grisly detail – and before all the world?
Inside Chamber V, in the Deputy President’s case, it is excruciatingly slowly but ineluctably and systematically emerging that there was indeed organisation for massive violence back in 2007 and that the Presidential election result was merely the trigger.
The international community watches
The international community views these matters very differently from Kenyans and their tradition of being much-too-quick to forgive the depredations of political violence and mass displacement.
There are therefore conclusions that Ruto has doubtless reached, in his heart of hearts, and which he has confided to no one, that can only be the fruit of direct and bitter experience.
If the case against President Uhuru does indeed start and go on, even in his complete absence, the Rift Valley political grassroots will be watching carefully to see if there is so much as a single Kalenjin witness against him.
When the Senator for Baringo, Gideon Moi, favourite son of former President Daniel arap Moi, joined a long list of prominent visitors to Ruto at The Hague, eyebrows shot up all over the place, particularly back home in the Rift Valley. Gideon, who is also former ruling party Kanu’s chairman, said he had gone to The Hague to give Ruto “moral support”. Ruto has become leader of the Rift Valley by displacing the Moi factor and there has been no love lost between him and Gideon or the patriarch, Daniel.
Gideon’s gesture, in which he and Ruto took a long, leisurely walk in The Hague on a Sunday afternoon, unaccompanied by aides, during which Ruto is said to have spoken to Moi Snr by phone for more than 20 minutes, has sparked off much speculation.
If a Ruto succession were ever to happen, for whatever reason, including ICC case-related, it is widely thought that Gideon would want to try and step into the breach.
And, unlike Deputy President Ruto, President Uhuru has kept all channels open to Moi and Gideon, even visiting them twice since he became the tenant of State House.
President Uhuru and Deputy President Ruto may yet escape their separate-yet-joint ICC nightmares, which brought about their extraordinary alliance in the first place. It is what transpires, inside politics, after the nightmare at The Hague is over, one way or the other, which will constitute the real, world-class headache.
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