Politics

When Colonel Isaac Zida swapped his military fatigues for a blue suit to chair his first cabinet meeting as prime minister of Burkina Faso, his intended audience may have been the West and its African allies. While some diplomats have voiced unease about the military's role in politics since protests toppled long-time ruler Blaise Compaore in October, few Burkinabe are concerned as long as the soldiers protect their 'revolution' and push through demanded reforms. Although a handful of people were shot in the uprising, Zida won the hearts of protesters when the presidential guard troops he commanded refused to open fire on crowds as they stormed parliament. He was then cheered as a hero when he addressed protesters in Independence Square - inviting comparisons with left-wing hero Captain Thomas Sankara who ruled Burkina Faso from 1983-1987. "If you see us getting on with the soldiers today, it is because these soldiers stuck to their mission, which was to protect, rather than shoot, the people," said Michel Kafando, the new interim president, whose cabinet includes six military officers. "They will stay with us as they have shown proof of their loyalty to the people ... Otherwise we might have slipped into civil war," he added in an interview with France 24.

Underscoring their role at the heart of the revolution, the military organised a state funeral this week attended by thousands for six civilians killed in the uprising. Mourners at the ceremony carried posters of Zida's face next to that of Sankara, showing how successfully the colonel has tapped into memories of the beloved president killed in the 1987 coup that brought Compaore to power. Zida is portraying the army as defender of the revolution. His pledges of reforms, including investigations into corruption and unexplained deaths during the Compaore era, are popular. "The justice department will have lots of work. It will play a central role in this transition," Zida told the nation. The military's rise, though, is largely by default. Opposition politicians had stopped short of calling for Compaore to be ousted even as protests gathered pace against his efforts to rejig the constitution to seek re-election next year. Events moved faster than Compaore's enemies imagined. Having halted the parliamentary vote on constitutional change, crowds marched on his palace, forcing him to quit. At his party's headquarters in town, beers and food laid out in anticipation of a successful vote were consumed by ecstatic protesters. "The political class wasn't ready. Youth maintained the pressure so the army did what the people wanted," said Luc Marius Ibriga, a law professor and civil society leader. 

Sidelining a senior Compaore-era general who staked a claim for power, Zida and a collection of young officers cemented support from other leaders, especially a movement called Balai Citoyen, led by a rapper and a reggae singer who captured the spirit of Burkina Faso's disgruntled, unemployed youth. Facing threats of sanctions by the African Union, Zida handed power over to Kafando before being named as prime minister of an interim government tasked with leading the country to elections within a year.
He retained the defence portfolio and fellow soldiers head five other ministries, including those in charge of lucrative gold mines, security, communication and organising elections. "We would liked to have had an all-civilian government but this is realpolitik," said Ibriga. Burkina Faso's army is no stranger to politics. Soldiers were in and out of power through a series of military takeovers before Compaore, then an army captain, seized control in 1987.

Despite opening up politics in the early 1990s, Compaore maintained a tight grip and military officers were never far from the heart of decision making. Augustin Loada, a civil society leader now in government, said this left a legacy that needed careful management. "The demilitarisation of power can only happen once we have an elected president," he said. Compaore's bid to cling to power united against him a diverse range of players, including former political allies who defected this year. Pascal Marie Ilboudo, a member of the MPP party they set up, said he backed Zida's calls for justice for crimes committed under Compaore but said the colonel should not be allowed to get "too used to the taste of power". Ibriga said Burkinabe leaders had not appreciated lecturing by foreign envoys who had said little as Compaore rolled out his plan to extend his 27-year rule but then jetted in to tell them how to manage a transition back to civilian rule. "They told us it was a transition to hold elections. We told them that wasn't what we want as it wouldn't be addressing the causes of the uprising," he said. "We need truth and justice. We have to lay the foundations of the new Burkina."

Rinaldo Depagne, head of the International Crisis Group in West Africa, said there were likely to be tensions between parties keen for an election as soon as possible and other players prioritising reforms. The new government also faces cash shortages as the impact of the uprising hits investments and government revenues ranging from taxes to bond sales. "They need to clearly decide what they want to achieve," Depagne said.

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Ngwa Bertrand

12.Dec.2014

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“Today is a dark day for international criminal justice,” said Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), as she reluctantly withdrew the charges against Kenyan President Uhuru Kenyatta last Friday. Bensouda was given little choice in the matter. Struggling to collect evidence, the Office of the Prosecutor (OTP) had asked the judges of the ICC to adjourn the case. The OTP requested a pause in proceedings until investigators could come up with stronger evidence or the Kenyan government could be persuaded to co-operate fully. The court denied this request, asking the prosecution to indicate whether it could proceed under the circumstances or alternatively, drop the matter altogether. Aware she did not have enough evidence for a conviction, Bensouda took the latter route. “The withdrawal of the charges does not mean the case has been permanently terminated. Mr Kenyatta has not been acquitted and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she said.

There are no positives to be taken from the end result, however. For the prosecution and the ICC, it’s a devastating blow to their credibility. Critics of the ICC, and there are many, will use the collapse of the case against Kenyatta as a powerful example to again question the court’s competence and its motives. Supporters of the ICC will be even more disheartened. The reason the prosecution went ahead was that there was a strong prima facie case implicating Kenyatta in Kenya’s horrific post-election violence in 2007 to 2008. To prove this beyond reasonable doubt, the prosecution needed investigators to find some new evidence, witnesses to testify to Kenyatta’s role and co-operation from the Kenyan government, which included sharing key financial documents that might have implicated the accused. It failed on all three fronts. The overstretched and under-resourced ICC investigative unit was also hamstrung by bureaucratic operating protocols (which require, for example, governments under investigation to be informed in advance of the presence of the investigators). Some witnesses died or went missing, while others refused to testify out of fear or suddenly changed their testimony without explanation.

This points to a sustained campaign of intimidation against witnesses, while few trusted the ICC’s guarantees of protection. The Kenyan government, meanwhile, failed repeatedly to hand over the full list of documents requested by the prosecution and the court was unable to force the co-operation it demanded. The prosecution’s struggles illustrate the difficulties, or even the limits, of international justice. Ultimately, prosecuting Kenyatta required far too much active co-operation from Kenyatta himself – who, as sitting president of Kenya, was perfectly positioned to frustrate the proceedings. But perhaps the most damaging aspect of the collapse of the case is Kenyatta has demonstrated to others exactly how to beat ICC charges. Thanks to Kenyatta, there is now a proven template for evading international justice. The first stage in Kenyatta’s defence began far away from the courtroom in The Hague, on the Kenyan campaign trail. When he was charged in 2012 with crimes against humanity, Kenyatta was deputy prime minister in the government of national unity. After the 2013 election he became president. Arguably the ICC charges – which he portrayed as victimisation – actually helped his campaign, as did his political alliance with another ICC accused, William Ruto. (Incidentally, Ruto and Kenyatta were on opposing sides during the 2007 to 2008 post-election violence, and Ruto remains on trial at the ICC.)

Once in power, Kenyatta was able to rally the full weight of the Kenyan government to his cause. This helped him in two ways. First, the issue of co-operation. Kenyatta’s legal team repeatedly denied the president had influenced the relationship between the ICC and the Kenyan government, pointing to the separation of powers in the Kenyan constitution and the independence of various government bodies. This was disingenuous. In Kenya, power flows directly from State House and it would take an exceptionally brave public official to hand over anything that might incriminate the head of state. The deaths and disappearance of witnesses underscored the danger. While there is no evidence suggesting Kenyatta was personally involved in the campaign of intimidation, it’s undeniable his defence was greatly strengthened by it, suggesting that whoever did orchestrate it was doing so to benefit the president. It is also surely no coincidence that no one has been arrested or charged in connection with witness intimidation. Second was the diplomatic offensive. In every conceivable forum, from the Rome Statute annual Assembly of States Parties to the African Union summit, Kenyan diplomats sought to criticise and undermine the ICC. They were particularly successful in depicting the court as biased against Africans, even persuading African leaders to issue a strong statement of condemnation at an extraordinary summit to discuss the ICC cases. This put the court under huge pressure and also bolstered Kenyatta’s public image.

Instead of an alleged international criminal, Kenyatta was able to portray himself as yet another African victim of a racist western institution. This image generated plenty of solidarity and shielded Kenyatta from continental pressure to co-operate fully (or the imposition of sanctions, such as a travel ban, to that effect).
In the end, this was a perfect defence, as the withdrawal of charges proves. Unfortunately, the message it sends to other suspects under investigation by the ICC is that one way to beat the court is by taking control of the state. This raises yet another difficult paradox for the ICC to grapple with: indirectly, its efforts could encourage some of the world’s most dangerous men to seek more power, not less. But the biggest losers in all of this remain, of course, the more than 20 000 victims of Kenya’s post-election violence for whom justice is still far away. “Seven years ago, tens of thousands of people in Naivasha and Nakuru were targeted for no reason other than their ethnic identity. Men were beheaded in the streets. Human heads were paraded on sticks. Women were serially raped and then doused in paraffin and set alight. Children were burnt alive. Houses and tiny business premises were pillaged and destroyed in their thousands,” explained Fergal Gaynor, legal representative for the victims at the ICC. ‘It is regrettable the victims have received almost nothing from the entire ICC process. The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC,” he concluded.

Culled from Defence Web

Details

Ngwa Bertrand

11.Dec.2014

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“Today is a dark day for international criminal justice,” said Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), as she reluctantly withdrew the charges against Kenyan President Uhuru Kenyatta last Friday. Bensouda was given little choice in the matter. Struggling to collect evidence, the Office of the Prosecutor (OTP) had asked the judges of the ICC to adjourn the case. The OTP requested a pause in proceedings until investigators could come up with stronger evidence or the Kenyan government could be persuaded to co-operate fully. The court denied this request, asking the prosecution to indicate whether it could proceed under the circumstances or alternatively, drop the matter altogether. Aware she did not have enough evidence for a conviction, Bensouda took the latter route. “The withdrawal of the charges does not mean the case has been permanently terminated. Mr Kenyatta has not been acquitted and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she said.

There are no positives to be taken from the end result, however. For the prosecution and the ICC, it’s a devastating blow to their credibility. Critics of the ICC, and there are many, will use the collapse of the case against Kenyatta as a powerful example to again question the court’s competence and its motives. Supporters of the ICC will be even more disheartened. The reason the prosecution went ahead was that there was a strong prima facie case implicating Kenyatta in Kenya’s horrific post-election violence in 2007 to 2008. To prove this beyond reasonable doubt, the prosecution needed investigators to find some new evidence, witnesses to testify to Kenyatta’s role and co-operation from the Kenyan government, which included sharing key financial documents that might have implicated the accused. It failed on all three fronts. The overstretched and under-resourced ICC investigative unit was also hamstrung by bureaucratic operating protocols (which require, for example, governments under investigation to be informed in advance of the presence of the investigators). Some witnesses died or went missing, while others refused to testify out of fear or suddenly changed their testimony without explanation.

This points to a sustained campaign of intimidation against witnesses, while few trusted the ICC’s guarantees of protection. The Kenyan government, meanwhile, failed repeatedly to hand over the full list of documents requested by the prosecution and the court was unable to force the co-operation it demanded. The prosecution’s struggles illustrate the difficulties, or even the limits, of international justice. Ultimately, prosecuting Kenyatta required far too much active co-operation from Kenyatta himself – who, as sitting president of Kenya, was perfectly positioned to frustrate the proceedings. But perhaps the most damaging aspect of the collapse of the case is Kenyatta has demonstrated to others exactly how to beat ICC charges. Thanks to Kenyatta, there is now a proven template for evading international justice. The first stage in Kenyatta’s defence began far away from the courtroom in The Hague, on the Kenyan campaign trail. When he was charged in 2012 with crimes against humanity, Kenyatta was deputy prime minister in the government of national unity. After the 2013 election he became president. Arguably the ICC charges – which he portrayed as victimisation – actually helped his campaign, as did his political alliance with another ICC accused, William Ruto. (Incidentally, Ruto and Kenyatta were on opposing sides during the 2007 to 2008 post-election violence, and Ruto remains on trial at the ICC.)

Once in power, Kenyatta was able to rally the full weight of the Kenyan government to his cause. This helped him in two ways. First, the issue of co-operation. Kenyatta’s legal team repeatedly denied the president had influenced the relationship between the ICC and the Kenyan government, pointing to the separation of powers in the Kenyan constitution and the independence of various government bodies. This was disingenuous. In Kenya, power flows directly from State House and it would take an exceptionally brave public official to hand over anything that might incriminate the head of state. The deaths and disappearance of witnesses underscored the danger. While there is no evidence suggesting Kenyatta was personally involved in the campaign of intimidation, it’s undeniable his defence was greatly strengthened by it, suggesting that whoever did orchestrate it was doing so to benefit the president. It is also surely no coincidence that no one has been arrested or charged in connection with witness intimidation. Second was the diplomatic offensive. In every conceivable forum, from the Rome Statute annual Assembly of States Parties to the African Union summit, Kenyan diplomats sought to criticise and undermine the ICC. They were particularly successful in depicting the court as biased against Africans, even persuading African leaders to issue a strong statement of condemnation at an extraordinary summit to discuss the ICC cases. This put the court under huge pressure and also bolstered Kenyatta’s public image.

Instead of an alleged international criminal, Kenyatta was able to portray himself as yet another African victim of a racist western institution. This image generated plenty of solidarity and shielded Kenyatta from continental pressure to co-operate fully (or the imposition of sanctions, such as a travel ban, to that effect).
In the end, this was a perfect defence, as the withdrawal of charges proves. Unfortunately, the message it sends to other suspects under investigation by the ICC is that one way to beat the court is by taking control of the state. This raises yet another difficult paradox for the ICC to grapple with: indirectly, its efforts could encourage some of the world’s most dangerous men to seek more power, not less. But the biggest losers in all of this remain, of course, the more than 20 000 victims of Kenya’s post-election violence for whom justice is still far away. “Seven years ago, tens of thousands of people in Naivasha and Nakuru were targeted for no reason other than their ethnic identity. Men were beheaded in the streets. Human heads were paraded on sticks. Women were serially raped and then doused in paraffin and set alight. Children were burnt alive. Houses and tiny business premises were pillaged and destroyed in their thousands,” explained Fergal Gaynor, legal representative for the victims at the ICC. ‘It is regrettable the victims have received almost nothing from the entire ICC process. The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC,” he concluded.

Culled from Defence Web

Details

Ngwa Bertrand

11.Dec.2014

Hits: 2133

“Today is a dark day for international criminal justice,” said Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), as she reluctantly withdrew the charges against Kenyan President Uhuru Kenyatta last Friday. Bensouda was given little choice in the matter. Struggling to collect evidence, the Office of the Prosecutor (OTP) had asked the judges of the ICC to adjourn the case. The OTP requested a pause in proceedings until investigators could come up with stronger evidence or the Kenyan government could be persuaded to co-operate fully. The court denied this request, asking the prosecution to indicate whether it could proceed under the circumstances or alternatively, drop the matter altogether. Aware she did not have enough evidence for a conviction, Bensouda took the latter route. “The withdrawal of the charges does not mean the case has been permanently terminated. Mr Kenyatta has not been acquitted and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she said.

There are no positives to be taken from the end result, however. For the prosecution and the ICC, it’s a devastating blow to their credibility. Critics of the ICC, and there are many, will use the collapse of the case against Kenyatta as a powerful example to again question the court’s competence and its motives. Supporters of the ICC will be even more disheartened. The reason the prosecution went ahead was that there was a strong prima facie case implicating Kenyatta in Kenya’s horrific post-election violence in 2007 to 2008. To prove this beyond reasonable doubt, the prosecution needed investigators to find some new evidence, witnesses to testify to Kenyatta’s role and co-operation from the Kenyan government, which included sharing key financial documents that might have implicated the accused. It failed on all three fronts. The overstretched and under-resourced ICC investigative unit was also hamstrung by bureaucratic operating protocols (which require, for example, governments under investigation to be informed in advance of the presence of the investigators). Some witnesses died or went missing, while others refused to testify out of fear or suddenly changed their testimony without explanation.

This points to a sustained campaign of intimidation against witnesses, while few trusted the ICC’s guarantees of protection. The Kenyan government, meanwhile, failed repeatedly to hand over the full list of documents requested by the prosecution and the court was unable to force the co-operation it demanded. The prosecution’s struggles illustrate the difficulties, or even the limits, of international justice. Ultimately, prosecuting Kenyatta required far too much active co-operation from Kenyatta himself – who, as sitting president of Kenya, was perfectly positioned to frustrate the proceedings. But perhaps the most damaging aspect of the collapse of the case is Kenyatta has demonstrated to others exactly how to beat ICC charges. Thanks to Kenyatta, there is now a proven template for evading international justice. The first stage in Kenyatta’s defence began far away from the courtroom in The Hague, on the Kenyan campaign trail. When he was charged in 2012 with crimes against humanity, Kenyatta was deputy prime minister in the government of national unity. After the 2013 election he became president. Arguably the ICC charges – which he portrayed as victimisation – actually helped his campaign, as did his political alliance with another ICC accused, William Ruto. (Incidentally, Ruto and Kenyatta were on opposing sides during the 2007 to 2008 post-election violence, and Ruto remains on trial at the ICC.)

Once in power, Kenyatta was able to rally the full weight of the Kenyan government to his cause. This helped him in two ways. First, the issue of co-operation. Kenyatta’s legal team repeatedly denied the president had influenced the relationship between the ICC and the Kenyan government, pointing to the separation of powers in the Kenyan constitution and the independence of various government bodies. This was disingenuous. In Kenya, power flows directly from State House and it would take an exceptionally brave public official to hand over anything that might incriminate the head of state. The deaths and disappearance of witnesses underscored the danger. While there is no evidence suggesting Kenyatta was personally involved in the campaign of intimidation, it’s undeniable his defence was greatly strengthened by it, suggesting that whoever did orchestrate it was doing so to benefit the president. It is also surely no coincidence that no one has been arrested or charged in connection with witness intimidation. Second was the diplomatic offensive. In every conceivable forum, from the Rome Statute annual Assembly of States Parties to the African Union summit, Kenyan diplomats sought to criticise and undermine the ICC. They were particularly successful in depicting the court as biased against Africans, even persuading African leaders to issue a strong statement of condemnation at an extraordinary summit to discuss the ICC cases. This put the court under huge pressure and also bolstered Kenyatta’s public image.

Instead of an alleged international criminal, Kenyatta was able to portray himself as yet another African victim of a racist western institution. This image generated plenty of solidarity and shielded Kenyatta from continental pressure to co-operate fully (or the imposition of sanctions, such as a travel ban, to that effect).
In the end, this was a perfect defence, as the withdrawal of charges proves. Unfortunately, the message it sends to other suspects under investigation by the ICC is that one way to beat the court is by taking control of the state. This raises yet another difficult paradox for the ICC to grapple with: indirectly, its efforts could encourage some of the world’s most dangerous men to seek more power, not less. But the biggest losers in all of this remain, of course, the more than 20 000 victims of Kenya’s post-election violence for whom justice is still far away. “Seven years ago, tens of thousands of people in Naivasha and Nakuru were targeted for no reason other than their ethnic identity. Men were beheaded in the streets. Human heads were paraded on sticks. Women were serially raped and then doused in paraffin and set alight. Children were burnt alive. Houses and tiny business premises were pillaged and destroyed in their thousands,” explained Fergal Gaynor, legal representative for the victims at the ICC. ‘It is regrettable the victims have received almost nothing from the entire ICC process. The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC,” he concluded.

Culled from Defence Web

Details

Ngwa Bertrand

11.Dec.2014

Hits: 1981

“Today is a dark day for international criminal justice,” said Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), as she reluctantly withdrew the charges against Kenyan President Uhuru Kenyatta last Friday. Bensouda was given little choice in the matter. Struggling to collect evidence, the Office of the Prosecutor (OTP) had asked the judges of the ICC to adjourn the case. The OTP requested a pause in proceedings until investigators could come up with stronger evidence or the Kenyan government could be persuaded to co-operate fully. The court denied this request, asking the prosecution to indicate whether it could proceed under the circumstances or alternatively, drop the matter altogether. Aware she did not have enough evidence for a conviction, Bensouda took the latter route. “The withdrawal of the charges does not mean the case has been permanently terminated. Mr Kenyatta has not been acquitted and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she said.

There are no positives to be taken from the end result, however. For the prosecution and the ICC, it’s a devastating blow to their credibility. Critics of the ICC, and there are many, will use the collapse of the case against Kenyatta as a powerful example to again question the court’s competence and its motives. Supporters of the ICC will be even more disheartened. The reason the prosecution went ahead was that there was a strong prima facie case implicating Kenyatta in Kenya’s horrific post-election violence in 2007 to 2008. To prove this beyond reasonable doubt, the prosecution needed investigators to find some new evidence, witnesses to testify to Kenyatta’s role and co-operation from the Kenyan government, which included sharing key financial documents that might have implicated the accused. It failed on all three fronts. The overstretched and under-resourced ICC investigative unit was also hamstrung by bureaucratic operating protocols (which require, for example, governments under investigation to be informed in advance of the presence of the investigators). Some witnesses died or went missing, while others refused to testify out of fear or suddenly changed their testimony without explanation.

This points to a sustained campaign of intimidation against witnesses, while few trusted the ICC’s guarantees of protection. The Kenyan government, meanwhile, failed repeatedly to hand over the full list of documents requested by the prosecution and the court was unable to force the co-operation it demanded. The prosecution’s struggles illustrate the difficulties, or even the limits, of international justice. Ultimately, prosecuting Kenyatta required far too much active co-operation from Kenyatta himself – who, as sitting president of Kenya, was perfectly positioned to frustrate the proceedings. But perhaps the most damaging aspect of the collapse of the case is Kenyatta has demonstrated to others exactly how to beat ICC charges. Thanks to Kenyatta, there is now a proven template for evading international justice. The first stage in Kenyatta’s defence began far away from the courtroom in The Hague, on the Kenyan campaign trail. When he was charged in 2012 with crimes against humanity, Kenyatta was deputy prime minister in the government of national unity. After the 2013 election he became president. Arguably the ICC charges – which he portrayed as victimisation – actually helped his campaign, as did his political alliance with another ICC accused, William Ruto. (Incidentally, Ruto and Kenyatta were on opposing sides during the 2007 to 2008 post-election violence, and Ruto remains on trial at the ICC.)

Once in power, Kenyatta was able to rally the full weight of the Kenyan government to his cause. This helped him in two ways. First, the issue of co-operation. Kenyatta’s legal team repeatedly denied the president had influenced the relationship between the ICC and the Kenyan government, pointing to the separation of powers in the Kenyan constitution and the independence of various government bodies. This was disingenuous. In Kenya, power flows directly from State House and it would take an exceptionally brave public official to hand over anything that might incriminate the head of state. The deaths and disappearance of witnesses underscored the danger. While there is no evidence suggesting Kenyatta was personally involved in the campaign of intimidation, it’s undeniable his defence was greatly strengthened by it, suggesting that whoever did orchestrate it was doing so to benefit the president. It is also surely no coincidence that no one has been arrested or charged in connection with witness intimidation. Second was the diplomatic offensive. In every conceivable forum, from the Rome Statute annual Assembly of States Parties to the African Union summit, Kenyan diplomats sought to criticise and undermine the ICC. They were particularly successful in depicting the court as biased against Africans, even persuading African leaders to issue a strong statement of condemnation at an extraordinary summit to discuss the ICC cases. This put the court under huge pressure and also bolstered Kenyatta’s public image.

Instead of an alleged international criminal, Kenyatta was able to portray himself as yet another African victim of a racist western institution. This image generated plenty of solidarity and shielded Kenyatta from continental pressure to co-operate fully (or the imposition of sanctions, such as a travel ban, to that effect).
In the end, this was a perfect defence, as the withdrawal of charges proves. Unfortunately, the message it sends to other suspects under investigation by the ICC is that one way to beat the court is by taking control of the state. This raises yet another difficult paradox for the ICC to grapple with: indirectly, its efforts could encourage some of the world’s most dangerous men to seek more power, not less. But the biggest losers in all of this remain, of course, the more than 20 000 victims of Kenya’s post-election violence for whom justice is still far away. “Seven years ago, tens of thousands of people in Naivasha and Nakuru were targeted for no reason other than their ethnic identity. Men were beheaded in the streets. Human heads were paraded on sticks. Women were serially raped and then doused in paraffin and set alight. Children were burnt alive. Houses and tiny business premises were pillaged and destroyed in their thousands,” explained Fergal Gaynor, legal representative for the victims at the ICC. ‘It is regrettable the victims have received almost nothing from the entire ICC process. The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC,” he concluded.

Culled from Defence Web

Details

Ngwa Bertrand

11.Dec.2014

Hits: 1844

“Today is a dark day for international criminal justice,” said Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), as she reluctantly withdrew the charges against Kenyan President Uhuru Kenyatta last Friday. Bensouda was given little choice in the matter. Struggling to collect evidence, the Office of the Prosecutor (OTP) had asked the judges of the ICC to adjourn the case. The OTP requested a pause in proceedings until investigators could come up with stronger evidence or the Kenyan government could be persuaded to co-operate fully. The court denied this request, asking the prosecution to indicate whether it could proceed under the circumstances or alternatively, drop the matter altogether. Aware she did not have enough evidence for a conviction, Bensouda took the latter route. “The withdrawal of the charges does not mean the case has been permanently terminated. Mr Kenyatta has not been acquitted and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she said.

There are no positives to be taken from the end result, however. For the prosecution and the ICC, it’s a devastating blow to their credibility. Critics of the ICC, and there are many, will use the collapse of the case against Kenyatta as a powerful example to again question the court’s competence and its motives. Supporters of the ICC will be even more disheartened. The reason the prosecution went ahead was that there was a strong prima facie case implicating Kenyatta in Kenya’s horrific post-election violence in 2007 to 2008. To prove this beyond reasonable doubt, the prosecution needed investigators to find some new evidence, witnesses to testify to Kenyatta’s role and co-operation from the Kenyan government, which included sharing key financial documents that might have implicated the accused. It failed on all three fronts. The overstretched and under-resourced ICC investigative unit was also hamstrung by bureaucratic operating protocols (which require, for example, governments under investigation to be informed in advance of the presence of the investigators). Some witnesses died or went missing, while others refused to testify out of fear or suddenly changed their testimony without explanation.

This points to a sustained campaign of intimidation against witnesses, while few trusted the ICC’s guarantees of protection. The Kenyan government, meanwhile, failed repeatedly to hand over the full list of documents requested by the prosecution and the court was unable to force the co-operation it demanded. The prosecution’s struggles illustrate the difficulties, or even the limits, of international justice. Ultimately, prosecuting Kenyatta required far too much active co-operation from Kenyatta himself – who, as sitting president of Kenya, was perfectly positioned to frustrate the proceedings. But perhaps the most damaging aspect of the collapse of the case is Kenyatta has demonstrated to others exactly how to beat ICC charges. Thanks to Kenyatta, there is now a proven template for evading international justice. The first stage in Kenyatta’s defence began far away from the courtroom in The Hague, on the Kenyan campaign trail. When he was charged in 2012 with crimes against humanity, Kenyatta was deputy prime minister in the government of national unity. After the 2013 election he became president. Arguably the ICC charges – which he portrayed as victimisation – actually helped his campaign, as did his political alliance with another ICC accused, William Ruto. (Incidentally, Ruto and Kenyatta were on opposing sides during the 2007 to 2008 post-election violence, and Ruto remains on trial at the ICC.)

Once in power, Kenyatta was able to rally the full weight of the Kenyan government to his cause. This helped him in two ways. First, the issue of co-operation. Kenyatta’s legal team repeatedly denied the president had influenced the relationship between the ICC and the Kenyan government, pointing to the separation of powers in the Kenyan constitution and the independence of various government bodies. This was disingenuous. In Kenya, power flows directly from State House and it would take an exceptionally brave public official to hand over anything that might incriminate the head of state. The deaths and disappearance of witnesses underscored the danger. While there is no evidence suggesting Kenyatta was personally involved in the campaign of intimidation, it’s undeniable his defence was greatly strengthened by it, suggesting that whoever did orchestrate it was doing so to benefit the president. It is also surely no coincidence that no one has been arrested or charged in connection with witness intimidation. Second was the diplomatic offensive. In every conceivable forum, from the Rome Statute annual Assembly of States Parties to the African Union summit, Kenyan diplomats sought to criticise and undermine the ICC. They were particularly successful in depicting the court as biased against Africans, even persuading African leaders to issue a strong statement of condemnation at an extraordinary summit to discuss the ICC cases. This put the court under huge pressure and also bolstered Kenyatta’s public image.

Instead of an alleged international criminal, Kenyatta was able to portray himself as yet another African victim of a racist western institution. This image generated plenty of solidarity and shielded Kenyatta from continental pressure to co-operate fully (or the imposition of sanctions, such as a travel ban, to that effect).
In the end, this was a perfect defence, as the withdrawal of charges proves. Unfortunately, the message it sends to other suspects under investigation by the ICC is that one way to beat the court is by taking control of the state. This raises yet another difficult paradox for the ICC to grapple with: indirectly, its efforts could encourage some of the world’s most dangerous men to seek more power, not less. But the biggest losers in all of this remain, of course, the more than 20 000 victims of Kenya’s post-election violence for whom justice is still far away. “Seven years ago, tens of thousands of people in Naivasha and Nakuru were targeted for no reason other than their ethnic identity. Men were beheaded in the streets. Human heads were paraded on sticks. Women were serially raped and then doused in paraffin and set alight. Children were burnt alive. Houses and tiny business premises were pillaged and destroyed in their thousands,” explained Fergal Gaynor, legal representative for the victims at the ICC. ‘It is regrettable the victims have received almost nothing from the entire ICC process. The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC,” he concluded.

Culled from Defence Web

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Ngwa Bertrand

11.Dec.2014

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