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Ocampo’s applications

December 26, 2010 2 comments

ICC prosecutor Luis Moreno-Ocampo has submitted two identical applications to the court on the Kenyan situation. One involves William Ruto, Henry Kosgey and Joshua arap Sang.

The other one involves Francis Muthaura, Uhuru Kenyatta and Mohammed Hussein Ali. The central thesis of the two applications is that as far back as 2006 Mr Ruto, Mr Kosgey and Mr Sang, for and on behalf of ODM, planned to gain power in the Rift Valley first and then throughout the country, and expel from the Rift Valley those who supported PNU.

They, in the process, recruited young men as gangs to effect their plan. After the election results were announced, the trio started executing their plan. In response, PNU and the Government of Kenya represented by Mr Muthaura, Mr Kenyatta and Maj-Gen (rtd) Ali, counterattacked the forces led by Mr Ruto, Mr Kosgey and Mr Sang.

This they did by “developing and executing a plan to attack perceived ODM supporters in order to keep PNU in power”. Mr Muthaura and Maj-Gen Ali are also accused of deploying the police force in ODM strongholds like Kibera, Kisumu and are alleged to have killed 100 ODM supporters.

With the help of Mr Kenyatta, Mr Moreno-Ocampo alleges, the Mungiki gang was deployed by the three individuals to attack ODM supporters in Naivasha. That is the prosecutor’s central thesis. It is simplistic, but that narrative is its strongest point.

Before we interrogate the thesis, a word of caution on the process so far: it must be appreciated that even though the ICC is a legal process, Mr Moreno-Ocampo has been unwise in playing politics. A good prosecutor is averse to publicity, especially one that doesn’t advance his legal goals.

On playing politics, he has played a cameo role. I am highlighting this aspect because I have a feeling that he is insensitive to the feelings and hopes of the victims. He is building high hopes that those who killed, raped and displaced thousands of Kenyans will be convicted.

Second, his hypothesis is unconvincing for a criminal trial, leave alone an international criminal trial. It is obvious that the six individuals have been chosen through a lottery scheme in which Mr Moreno-Ocampo and others picked their choices.

There is nothing in the case summary he builds or the evidence he alludes to that elevates the six to the special status he gives them.

There isn’t any logic why, for instance, Mr Ruto, Mr Kosgey and Mr Sang can be identified as the nerve organ of ODM. The same applies to Mr Muthaura, Mr Kenyatta and Maj-Gen Ali. So the weakest part of his narrative is that it is based on an imaginative edifice that, at best, is fairytale and at worst a cynical witch-hunt.

The defence will have a field day in dismantling Mr Moreno-Ocampo’s case against some of the six individuals. The worst loser in this matter is not the prosecutor or the six Kenyans that may face trial but the ICC. If it allows this case to go ahead, it will show that it is a court to police Africa.

If it throws out this case, it will be guilty of building a false hope all along, when it knew the Kenyan case doesn’t satisfy the legal threshold of international crime under the Rome Statute.

Remember what Judge Hans-Peter Kaul, refusing to allow the prosecutor of the ICC to investigate the Kenyan case, said on on March 31st 2010,

“I wish to emphasise and stress in the clearest terms that my analysis, which is based on the supporting material submitted by the prosecutor … does not mean that crimes have not occurred during the period in question in the Republic of Kenya. I strongly and unequivocally condemn any of those acts … the question is not whether or not those crimes have happened. The issue is whether the ICC is the right forum before which to investigate and prosecute those crimes.”

 

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