High stakes game as date with ICC draws near

 

By MAKAU MUTUAPosted Saturday, February 26 2011 at 16:54

In Summary

• One of the likely scenarios is that the Ocampo Six will plea bargain and sing like birds in exchange for leniency

No one – alive or dead – can remember a time of such undignified and pathetic panic among the political class in Kenya. That’s why the name Luis Moreno-Ocampo will forever be seared in the minds of Kenyan “lords of impunity”.

Grown men are weeping at night and desperate suspects are going for broke. The highest and the mightiest are acting like deer caught in the headlights.

I know why. The likely trials of the Ocampo Six at The Hague conjure up bone-chilling scenarios. There could be more “unpleasant” surprises.

There is every indication that Mr Moreno-Ocampo is moving in for the kill. There are four likely – and devastating – scenarios that are keeping the PNU/KKK cabal awake at night.

Let me first offer Mr Moreno-Ocampo’s suspects some unsolicited advice. I am not gloating. For three years now I have warned in this column that Mr Moreno-Ocampo is serious. I’ve written time and again that he would “swoop down” on post-election violence suspects.

I and others counselled for a credible local tribunal to try the suspects. Our pleas fell on deaf ears. The political class – led by the suspects – opted for The Hague. They led the chant – “Don’t be vague; we want to go to The Hague”.

They thought Mr Moreno-Ocampo was a remote and impotent irritant. Their hubris deceived them that they were untouchable. They believe in their own infallibility. Now the chickens have come home to roost.

In Scenario A, the Ocampo Six will deny culpability. You know – that “innocent until proven guilty” mumbo jumbo. But they will be confronted with “mountains of evidence”. Their lawyers will try and poke holes in the evidence.

They will allege alibis. They will forcefully and theatrically attempt to rebut the allegations. This false bravado will give the accused false confidence. They will think the prosecutor’s case is weak – that he cannot meet his burden of proof.

The Ocampo Six will believe their lawyers. But the prosecutor will prove – beyond the shadow of a doubt – that the Ocampo Six are guilty as charged. And then Kaboom – the Ocampo Six will be convicted.

In Scenario B, the lawyers for the Ocampo Six will be legal eagles. They will assemble the best legal talent in the world. The Kenya Government will pay top dollar for Ambassador Francis Muthaura and former Police Commissioner Hussein Ali.

Why? Because they were “carrying out official duties” when alleged crimes against humanity were committed. Finance minister Uhuru Kenyatta, Tinderet MP Henry Kosgey and Eldoret North MP William Ruto don’t need public charity.

These “deep pockets” can buy any lawyer. They will adopt “poor” Joshua arap Sang. On their legal team will be QCs, distinguished law professors, and former judges. These legal eagles will tear Mr Moreno-Ocampo’s case to shreds. And Poof – Mr Moreno-Ocampo’s case will go up in smoke.

In Scenario C, the Ocampo Six will escape the ICC dragnet by pulling an Omar al-Bashir. The UN Security Council will reject Kenya’s plea for a deferral. Everyone knows that Kenya’s “ask” for a deferral is fake and hypocritical.

It doesn’t matter anyway because both the Brits and the Americans will veto the request. But the ICC will issue arrest warrants, not “voluntary” summons. Why – because of Kenya’s bad faith.

But President Mwai Kibaki will refuse to hand over the Ocampo Six. Why should he? They are core to the PNU/KKK cabal. PM Raila Odinga will protest loudly, but President Kibaki will ignore him. America will freeze the assets of PNU/KKK top guns and impose travel bans.

In Scenario D, I believe that the Ocampo Six will try to cut a deal with Mr Moreno-Ocampo to save their own hides. They will plea bargain and sing like birds in exchange for leniency. This is where matters become really dicey. I am convinced that the Ocampo Six will not go down alone.

They will take some folks down with them. A man will eat another to save himself if that’s what he has to do. That’s why the trapped Chilean miners were close to cannibalism when hope was fading. Perhaps Mr Moreno-Ocampo will offer some of them freedom for their testimony against others.

The Ocampo Six will ask – why should “we take the fall” for others?

Under this scenario, the Ocampo Six will turn on each other, their superiors, and confidantes.

There is no honour among thieves. When push comes to shove – and all hope is gone – it’s every man for himself. The Ocampo Six will cannibalise each other and their “co-conspirators”. This is “human nature”. Mr Ruto and Mr Kosgey will try to implicate PM Odinga.

Reduced sentences

In fact, they will contend that Mr Odinga “authored” the violence and “ordered them” as ODM boss to execute the mayhem. They will receive reduced sentences, but take Mr Odinga down with them. But Mr Kosgey could turn on both Mr Ruto and Mr Odinga, and pin the “whole thing” on them.

Under this scenario, Mr Muthaura, Mr Kenyatta and Mr Ali will turn into mortal enemies. They will point fingers at each other, and “rat” each other out. In the recent Muthaura tapes – doctored or not – he seemed to deflect responsibility to his bosses. Does this mean that he might implicate President Kibaki? Most certainly.

He might argue, for instance, that he gave certain orders to Mr Ali either at the behest of, or with the knowledge and connivance, of President Kibaki and Mr Kenyatta. This is heady stuff, but not unfathomable. One needs only to read history to know how leaders turn on each other.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.