How Kenya lost ICC case

By Alex NdegwaKenya Government has declared it is going to appeal the Monday ruling by Pre-Trial Chamber II Judges that hilariously exposed how it shot itself in the foot with a weak case. Curiously, Attorney General Amos Wako, who is leading the Government effort to get the 'Ocampo Six' off The Hague's charge list,
announced the appeal will be led by the two British expatriates behind the suit that was thrown out.
He also maintained Kenya will stick to its position that there are ongoing investigations into the cases of the Ocampo Six locally, despite the International Criminal Court judges having ruled that he instructed CID director to commence investigations two weeks after Kenya filed its admissibility challenge.
Probably without intent to reveal how expensive the process of appeal, plus the initial suit, would be to Kenya, he revealed he is flying out to London to meet the two British lawyers — Sir Geoffrey Nice and Rodney Dixon — on Friday.
Wako also blamed the squabbling in the Grand Coalition, the standoff in the House Justice Committee that would have vetted the new Chief Justice, and the bumpy process of implementation of the Constitution, on the failure of Kenya’s case.
SabotageThe AG, who on Monday lambasted the ICC Prosecutor Luis Moreno-Ocampo over his claim last Sunday that Kenya was sabotaging his investigations and was out to protect the Ocampo Six, spoke as visiting ICC delegation met the Sub-Committee of the Cabinet on The Hague affair.
"The ultimate success of the Government’s application will depend on the manner, speed, determination and unity with which we carry out constitutional reforms, and in particular judicial and police reforms,’’ Wako said, in statement posted on the Government spokesman’s website.
He added: "Any squabbling and acrimonious debate and delays in implementation of the Constitution only sends negative signal and makes the Government’s success difficult. Let us therefore resolve to pursue the reforms soberly, expeditiously, and with maximum determination."
But as Wako, the outgoing Chief Government Legal Advisor, fought back the loss to his side, which included the Solicitor- General Wanjuki Muchemi and Chief Public Prosecutor Keriako Tobiko, further scrutiny of the Monday ruling unmasked the blunders the State made as it sought to take over the cases against the Ocampo Six.
The ruling’s exposure of Wako’s weak case adds to the litany of gaffes Kenya has showcased at the international arena, which climaxed with the misdirected ‘diplomatic shuttle’ campaign to petition UN Security Council, to defer Kenya’s cases for a year — when it should have directly engaged ICC itself.
It followed initial rejection of a special tribunal, which the judges observed in the Monday ruling "is strongly indicative of an unwillingness to genuinely investigate and prosecute" to justify The Hague cases will go on.
Perhaps had the authorities in 2009 voluntarily referred the post-election violence cases to the ICC as sought by Moreno-Ocampo then Kenya’s application for referral would have been considered.
But President Kibaki and Prime Minister Raila Odinga had rejected the prosecutor’s request, prompting Moreno-Ocampo to, for the first time, use his powers under Article 15 of the ICC Statute to initiate proceedings in the ICC propio motu (on his own motion).
Special tribunalNaturally Moreno-Ocampo, who had waited for over a year for Kenya to establish a special tribunal, just like ICC itself, must have developed a conviction Nairobi was reluctant to handle the cases itself. But two years later when Kenya started to claim it should handle the cases, the damage had been done.
After these blunders, the Government eventually took its bungling streak inside The Hague courtroom. The documentary evidence compiled by Sir Nice and Dixon, who took instructions from Wako, did not impress the judges. Out of the 29 annexes Government presented to Pre-Trial Chamber, only three were found to be of direct relevance to the investigative process it claimed was ongoing.
And even so, one of the crucial documents unwittingly hurt Kenya’s cause. The document had been generated on April 14 — two weeks after the Government had lodged its admissibility challenge — and the judges concluded it was proof "there were in fact no ongoing investigations".
In yet another gaffe, although the backbone of the Government’s case was that it was investigating post-poll violence cases, it sought the ICC’s urgent assistance to access the Prosecutor’s evidence "to assist the national authorities in conducting and advancing their investigations".
The Government had lodged the Co-operation Request three weeks after the main application, yet it argued the two were interrelated and wanted the court to rule first on the former, prompting the judges to wonder why they were not filed together.
Essentially, lack of proof that the Ocampo Six were under investigations for crimes against humanity and the State’s overreliance on impending judicial reforms and "promises for future investigative activities" scuttled its application.
In an attempt to go round the legal trapdoors — such as the requirement that "those investigations must also cover the same persons subject to the ICC’s proceedings" — Government ended up shooting itself in the foot.
The judges termed the Government’s interpretation that it is sufficient to investigate "persons at the same level in the hierarchy" as "misleading."
"The Chamber believes that these arguments cast doubt on the willingness of the State to actually investigate the three suspects, assuming that there are ongoing investigations as asserted," ruled the judges.
Special tribunalIn the enthusiasm to impress the judges the Government promised a progress report regarding prospective investigations to be carried out under the new Director of Public Prosecutions and "how they extend up to the highest levels".
But a rider that the report will build "on the investigations and prosecutions of lower level perpetrators to reach up to those at the highest levels who may have been responsible" saw the move backfire.
"The Chamber is surprised by such a statement, which is actually an acknowledgment by the Government of Kenya that so far the alleged ongoing investigations have not yet extended to those at the highest level of hierarchy," remarked the judges.
The Government proposal for a six-month period, within which it "will be undertaking investigations" and "will be in a position to provide progress reports" to the Chamber by end of July, August, and September was seen as proof of inaction.
The judges observed if national proceedings against the six suspects were ongoing, then "there is no convincing reason to wait until July to submit the said first report".
Unwillingness to investigate ICC’s contested the absence of the suspects from the list of pending investigations provided by the Government as "compelling evidence" of the latter’s unwillingness to genuinely investigate and prosecute them. The judges observed it was apparent the Government relied mainly on judicial reforms and promises for future investigative activities while at the same time arguing that there were current initiatives, but it presented no concrete evidence.
In response the Government alleged that "a file was opened against one of the six suspects on account of witness statements taken by the (investigative) team, the judges observed the reference was probably to Mr William Ruto, citing an earlier four-page report dated May 5, signed by the Director of Criminal Investigation. But in its statement, the Government conceded the case had stalled because of "unreliable and unco-operative witnesses".
The Government also failed to provide the Chamber with any information as to the conduct, crimes or the incidents for which the three suspects were being investigated or questioned for. There is equally no record that showed them that the relevant witnesses had been questioned. That is why the Judges accused Kenya of submitting "staged reports".