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Has ICC failed or is it only effective when fixing political rivals?

Saturday October 25 2014
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President Uhuru Kenyatta and his deputy William Ruto are driven along a Nairobi street on October 9 upon the return of the former from the Netherlands, where he attended a status conference on his case at the ICC in The Hague. PHOTO | EVANS HABIL | NATION MEDIA GROUP

Kenya’s ruling Jubilee coalition is waging a political war against the International Criminal Court ahead of a decision by its bench on whether the government has co-operated with the Court or not.

The Jubilee politicians are now arguing that the case has become political and that the country, rather than President Uhuru Kenyatta, is now on trial and so the people’s representatives have to take on the court head-on.

On Tuesday, the ICC judges gave an order warning the Kenyan government over allegedly leaking confidential information to the media. This has been interpreted by the Jubilee government as an indication that the judges are likely to rule against Kenya with regard to a petition by the Prosecutor that the government has not be co-operating with the Court.

John Waiganjo, a lawyer and Member of Parliament for Ol Kalou, argued that orders are normally given in parliament and that, since the ICC has leaked it to the press, the Court has opened itself to attacks from politicians.

“The case is now about the Prosecutor versus the country,” said Mr Waiganjo. “It is not fair to put a country on trial simply because you cannot prove a case against one of its citizens.

“In that case, politicians have now become lawyers for the president in what they see as a political process.”

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The Kenyan government has written to the Assembly of State Parties asking members to discuss the conduct of the Court at the grouping’s annual meeting in December. It accuses the ICC of violating the Rome Statute on which it was founded. Also on trial in the Netherlands are Deputy President William Ruto and radio journalist Joshua arap Sang in a joint case that, just like President Kenyatta’s, arises from the 2007/8 post-election violence in Kenya.

READ: Uhuru at The Hague: Is the case dead or is Kenya obstructing ICC?

But as Kenyans await the decision by the ICC judges on the case facing President Kenyatta sometime this week, there is concern that the Court has performed below the expectations of the thousands of victims of crimes against humanity in Africa.

Twelve years since the ICC first opened its doors in The Hague, frustrated governments that have contributed more than $1 billion to its budget are asking how it has fared in its primary role of deterring political violence in the world.

The verdict from many, especially human-rights activists, is that the global court has failed not only victims of war crimes and crimes against humanity but also its handful of primary funders — such as the United Kingdom, Germany and France.

Ottillia Maunganidze, a researcher with the Institute for Security Studies, said the ICC is struggling because it does not have enough investigators to deal with many cases of international crime, while the investigators do not understand the jurisdictions in which they operate.

Only two convictions

The Court has so far only two convictions to its name — against Congolese warlords Thomas Lubanga and Germaine Katanga — despite spending more than $100 million a year and having 34 judges and other staff numbering more than 700 in its payroll.

On October 9, Trial Chamber VI of the ICC scheduled the opening of the trial in the case against another Congolese, Jean Bosco Ntaganda, for June 2, 2015. Mr Ntaganda is accused on 13 counts of war crimes and five of crimes against humanity, allegedly committed in the Ituri area of the Democratic Republic of Congo. 

READ: Prosecutors confirm Ntaganda charges

Although Dr Ben Sihanya, an international law lecturer at the University of Nairobi, told The EastAfrican that it was not prudent to judge a Court by the number of convictions that it has made, it seems way too inefficient and costs too much.

“If you look at it this way, only two convictions after a billion dollars in expenditure makes it difficult to justify the existence of any court,” Dr Sihanya said. “Donors want to see some tangible results; they must be frustrated with the rate of convictions.”

Expressing optimism, however, he added, “We must look at the long-term gain of the ICC in deterring leaders who have long ruled with impunity,” suggesting the $1 billion investment will pay off some day.

The ICC also has not exactly deterred war criminals in the world and its perceived “witch-hunt” of African leaders does not exactly give it legitimacy in the eyes of the African people and their leaders.

“The Court is not after Africans; in fact, seven or eight judges are from Africa and most of the staff in the prosecutor’s office are also Africans,” Dr Sihanya observed.

Even though Kenya had a skirmish-free presidential election last year, South Sudan imploded, the Central African Republic has been in free fall and armed conflict continues unabated in much of the developing world.

Despots’ days numbered

But James Mwamu, the president of the East Africa Law Society, said he believed the Court has been fairly successful in driving home the message that despots’ days are numbered.

Mr Mwamu nonetheless agreed that the ICC has been quite expensive to maintain and needs some reforms to make it more efficient.
Could the Court, however, be setting itself up for failure by going after the big fish?

Going by the Sudan and the Kenya cases, trials involving high-profile suspects are not going well. Sudan’s President Omar al-Bashir has been on the run. And all indications are that the trial against President Kenyatta could be terminated for lack of witnesses to give evidence.

According to Dr Yitiha Simbeye, a law lecturer at Open University in Dar es Salaam, it has been proven that the elite around accused African leaders galvanise support and create a situation whereby the leader is seen to be more popular than they actually are, making it difficult to prosecute or even arrest them, as is the case with President Bashir.

It seems the only way for this court to remain relevant, and secure convictions, is to channel its resources to the smaller fish. According to Dr Sihanya, however, the big fish are, unfortunately, the troublemakers and the court has no option but to go after them.

But how does the ICC expect to convict a head of state who controls a government that is expected to enforce the court’s decisions?

The Kenya case, which is being watched closely by legal experts around the world, “is a test case on co-operation and the ruling on Kenyatta’s case will determine the future of ICC,” Dr Sihanya told The EastAfrican.

George Kegoro, executive director of the International Commission of Jurists (Kenya Chapter), argued that the Kenya cases are floundering because, one, it took too long for the cases to start and the support for ICC among the public was eroded with time.

Second, the Chamber has adopted a disclosure regime that stripped the Prosecutor of secrecy and exposed witnesses, enabling the state, which is against the trial, to put pressure on the witnesses and their families.

Nine cases from Africa

The ICC has nine ongoing cases, all from African countries. Four of the countries — Uganda, DRC, CAR and Mali — referred their own cases to the court. The cases of Sudan and Libya were referred by the United Nations Security Council while the Kenya and Côte d’Ivoire ones were taken up by the prosecution of its own volition.

An examination of the progress in all these cases reveals why the ICC has registered success in some cases. The Court has been successful with suspects who are, first, not in government and, second, political rivals of the government in power.

In the case of Uganda, all the indictments issued by the ICC so far are against members of the rebel Lord’s Resistance Army, which has fought President Yoweri Museveni for decades. The prosecution should have an easy time accessing whatever evidence it needs to convict LRA leader Joseph Kony.

In fact, the US government pledged to assist Kampala to flush out Mr Kony from CAR, where he is believed to be in hiding.

The Congolese individuals facing charges at the court are all political rivals of the administration in Kinshasa.

As soon as he ousted his political rival Laurent Gbagbo, President Alassane Ouattara wrote to the ICC to investigate Mr Gbagbo’s role in the 2010-2011 Ivorian crisis that led to the deaths of thousands of people in the West African country.

Ironically, when Mr Gbagbo was president, he tried to use the ICC as a tool to fix Ouattara, then head of the Forces Nouvelles de Côte d’Ivoire (FNCI) rebel group that engaged pro-government forces in the civil war that ended in 2004.

The trend has proven that African countries readily provide all manner of evidence when it is self-referral but there are difficulties when a case is taken up by the Prosecutor of referred by the Security Council.

Reported by Fred Oluoch and Trevor Analo.

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