“Innocent
until proven guilty” is a defining principle of all respected legal systems. [...]Presumption
of innocence allows an individual to run, win and hold public office until they
are found to be anything other than innocent.
____________________________________
Summary
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| ICC Prosecutor,Fatou Bensouda, Mr. Ruto & Mr Kenyatta |
This commentary was inspired by events surrounding
the March 2013 electoral process in Kenya. It is a general analysis of the realpolitik surrounding the pre and post
election of Mr. Uhuru
Kenyatta and Mr. William
Ruto as President and Vice President respectively of the Republic of Kenya.
Specifically, the commentary engages with
the way the challenge to their election had been based on their indictment
before the International Criminal Court, and their subsequent treatment by
certain sections of the public, the media
and the diplomatic community.
The
commentary also engages with the role of the Kenyan citizen in determining
his/her democratic and other rights as well as analysing the perception of the
ICC in Africa generally and Kenya in particular. This especially so because it is considered in
some cases to be a tool for political opportunists to dispose of their
opponents.
1.0 Introduction
Having been exposed to
the dire consequences of the abuse of the rule of law, I know so well as to
advocate for the rights of the accused persons in any criminal trial. As one
who has researched about the fallibility of the judicial processes in local and
international jurisdictions, I am equally quick to acknowledge that not only is
proving the commission of a crime beyond reasonable doubt a herculean
trust, it also envisages impartiality of the tribunal and the officers of the
court which is oftentimes harder to divorce from the political and social
context in which the process is set.
Even more crucial, regardless of the
offences for which one is accused, there is an expectation of any democratic
society, and the international legal community is no exception, that we ought
to see – in practice – all that is being preached about the tenants of due
process. Failure to do so sets dangerous precedents which are often very hard
to stop : judicial sanctioning of coups d'état,
justifying abuses of the rights of citizens,
and
other absurdities that often times affect the very people for which they were
intended.
It is also of paramount
importance that those of us who seek to advocate for the cause of
accountability and reconciliation, especially in post-conflict situations, take
heed not to ignore the central role played by the individual citizen in
determining what he or she thinks is best. This is what some have called legal
realism.
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| The main contenders in the Presidential election Uhuru and Raila |
It is in this light that I have been following with
growing
concern, news reports regarding the way in which some people, institutions
and countries have been treating the recently elected President of Kenya Uhuru
Kenyatta and Vice President - elect William Ruto. It
is unsettling that the accused persons have been given a ‘hands-off’ attitude
like biblical lepers - guilty even before their trials commence at the International
Criminal Court.
2.0 The
Status Quo of the ICC Indictments
Kenya’s President-elect Uhuru
Kenyatta and Vice President - elect William Ruto were indicted by the International Criminal
Court and their cases were confirmed by the Pre-Trial
Chamber II of the ICC.
The two were part of the original 'Ocampo 6' suspects arraigned by the former
ICC Prosecutor Luis Moreno - Ocampo for committing crimes against humanity
after the contested December 2007 Presidential elections.
Estimates indicate that at least 1200 people were killed and 500,000 displaced
in the post election violence.
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| Outgoing President Mwai Kibaki, Premier Raila Odinga,former UN Secretary General Koffi Annan after the peace deal, 2008 |
|
|
To date therefore, only
three
suspects remain charged and their cases are set to commence on the 28th May
2013 for William Ruto and Joshua Arap Sang and
July
9, 2013 for Uhuru Kenyatta. Uhuru's lawyers have since argued that his case
cannot stand if Muthaura's collapses because “according to the prosecution’s
analysis, Uhuru and Muthaura colluded to exercise a level of control over the
Mungiki and the police forces, such that the allegedly planned and coordinated
post-electoral violence could take place.”
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| Uhuru and Muthaura at the ICC |
3.0 The
Prevailing Law
The above process shows that the ICC is carrying
out its role in ensuring that the cases involving the accused persons are
handled. However, we should not forget that the three said persons remain
suspects whose cases have not yet been proven beyond reasonable doubt.
a) Article 66 of the Rome
Statue States: (1) Everyone
shall be presumed innocent until proved guilty before the Court in accordance
with the applicable law. (2) The onus is on the Prosecutor to prove the guilt
of the accused. (3) In order to
convict the accused, the Court must be convinced of the guilt of the accused
beyond reasonable doubt.
b) Similarly, Article 11 (1) of the Universal Declaration of Human Rights 1948 states:
“everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all
the guarantees necessary for his defence.”
c) Article 14(2) of International Covenant on Civil and Political
Rights ICCPR states: “everyone charged with a criminal offence shall
have the right to be presumed innocent until proved guilty according to law.”
d) Article 7(1) of African Charter on Human and
Peoples' Rights 1981 ACHPR says: “every individual shall have the
right to have his cause heard. This comprises: (a) the right to an appeal to
competent national organs against acts of violating his fundamental rights as
recognized and guaranteed by conventions, laws, regulations and customs in
force; (b) the right to be presumed innocent until proved guilty by a competent
court or tribunal; (c) the right to defense, including the right to be defended
by counsel of his choice; (d) the right to be tried within a reasonable time by
an impartial court or tribunal.”
e) Article
50 of the Kenyan Constitution also talks about the presumption of innocence
until the contrary is proved.
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| Former Head of Civil Service/Secretary to CabinetFrancis Kirimi Muthaura |
|
In light of the above provisions, any attempt to
treat the accused persons otherwise should be resisted as it prejudices the
case of the defendant even before such accused person is put to his defence.
The withdrawal of charges against the Former Head
of Civil Service Francis
Muthaura as well as the various cases of persons accused of war crimes and
crimes against humanity which have been either discontinued, dismissed or
withdrawn should go along way in showing how important it is to afford equal
treatment and promote fairness while dealing with the accused persons.
Whereas it is impossible to delink questions of
power, bias, influence peddling, bribery of witness, selectivity of
prosecutions from the way these cases are selected, prosecuted or defended, what
should remain clear is that due process should be carried out.
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| Fatou Bensouda swears in as ICC Prosecutor |
Therefore, regardless of what the outcome of the impending
criminal trials will be, the attempts by some NGOs to block the Uhuru and Ruto from
participating in the March elections is not only flawed, but also a
contravention of the principles of natural justice. To hold otherwise would
imply that they are already guilty and what is being conducted at the ICC is a
waste of time and States Parties' money. Such an insinuation would also go to
the very heart of undermining the whole essence of trial justice. I therefore associate myself with the findings
of the Kenyan High Court to the effect that the duo should stand for political
office.
4.0 The
Reactions
I therefore think it is inappropriate and it does send
a conflicting message when certain
diplomats treat the ICC indictees as though they were already adjudged or
as though they had refused to cooperate with the court. The US,
Britain and the former UN Secretary-General Kofi Annan had earlier indicated
that Kenyatta's victory would not be welcome.
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| Najib Balala, Uhuru, Ruto,Charity Ngilu- Jubilee Coalition |
The British High Commissioner Christian Turner
noted that his country would only maintain essential business contacts with the ICC indictees while
the former US Assistant Secretary of
State for African Affairs Johnnie Carson Johnnie Carson, in what was seen to contradict President Obama's pledge to remain closely tied to Kenya, warned the Kenyan
populace that “choices matter and they have consequences.” Carson further said
that “[i]ndividuals have reputations, individuals have images, and individuals
have histories. Individuals are known for who they are and what they do, what
they have said, and how they act.”
This comment, which was made before the elections were conducted, was considered
in some circles as ‘a veiled support for
Kenyatta's opponent, Raila Odinga and drew the criticism of many.’
The aforementioned is a contradiction since the
very people of Kenya who supported the ICC intervention have also voted ICC
indictees into power. Mr. John Kerry the US Secretary of State who congratulated Kenya on its
peaceful elections, stopped short of specifically mentioning Uhuru Kenyatta's
name.
On the one hand, the USA has applauded the Kenyans for having had a peaceful
election, and even encouraged them to resolve any electoral disputes through
the Kenyan legal systems (which would signify that they have trust in the
national systems) yet on the other hand; they ignore the victorious parties
from the said elections. In so doing, the USA, and other western States have
sent contradictory messages – something which undermines the very principles of
democracy and good governance that they seek to promote worldwide.
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| Ms. Jendayi Frazer |
For some, this was seen as interference in the
domestic politics of a sovereign nation, as a ‘not so subtle attempt
to use the ICC politically to essentially threaten Kenyans about whom to vote
for in their presidential elections’ while for others, this
was a breach of the presumption of innocence which is a benchmark of the
western philosophy of trial justice. I agree with Ms. Jendayi Frazer when she
expresses her concern over the way these actions affect the ‘credibility
and effectiveness of US policy in Africa’. Whichever the case, the electoral process, which
was widely seen as free, fair and peaceful, had an 86% voter turnout from the
12 million registered voters – a no mean achievement for Kenya and Africa
generally. This election has since been upheld by the Supreme Court of the
land and put the aforementioned diplomats in an uncomfortable situation.
5.0 An uncomfortable Situation
The aforementioned action by Kenya’s western
development partners needs to be understood in context of Kenya’s strategic
geo-political situation.
It is trite knowledge that the UK and USA have very deep relationships with
Kenya and according to Ms. Jendayi Frazer, the former U.S. Assistant Secretary
of State for African Affairs, an awkward situation exists for the Western countries particularly for the EU, the UK and the
US which had come out prior to the vote and essentially tried to influence the
elections.
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| Fr. Assistant Secretary of State Johnnie Carson |
Mr Kenyatta, who has thus far, indicated a
willingness to cooperate with the ICC, has also stretched out his hand to the West
– which has continued to have a weakening presence in Africa and will thus not
want to lose such a vital ally. Besides, as Ms. Jendayi Frazer observes, Mr.
Kenyatta is a person who the USA can work with, having worked with him when he
was Finance Minister and as Deputy Prime Minister. She therefore does not envisage
a situation where a major shift in the relationship will occur.
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| Uhuru Kenyatta as Finance Minister |
However, it should be remembered that Mr. Kenyatta
does have 'other options' in case the West gives him a cold shoulder - the ever
growing influence of China in Africa, seen by the way it has continued to
support President Omar Bashir. This geopolitical reality therefore places the
western states in an awkward situation.
The other reason why the mutual interest between
Kenya and the US will prevail is because the USA is not a signatory to the ICC
and it will not allow the ICC to interfere with its strategic geopolitical
interests in Africa. Jendayi therefore argues that it will seem hypocritical
for the US to insist on the ICC indictment of Kenyatta as a predominant factor
in its relationship with Kenya. In any case, she argues that the case
against Mr. Kenyatta case at the ICC is a weak one, since one of the
crucial witnesses against him has been impugned by the Prosecutor.
On Saturday 16 March 2013, the election of Uhuru
Kenyatta was challenged before the Supreme Court of Kenya.
On Saturday 30 March 2013, the Supreme Court upheld the election results. The election results can be interpreted as a
sign that the ICC is seen more an instrument of geo-political politics and
local national politics rather than an instrument for post-election justice.
Thus, irrespective of the case at the ICC, over six
million Kenyan people voted the ICC indictees into power since they do not appreciate the way the
ICC indictments singled out a few people and left key playerslike Mwai Kibaki or
Raila Odinga. Muthoni Wanyeki, former Director of the Kenya Human Rights
Commission posits that one of the possible explanations as to why Uhuru Kenyatta won the
election is because the Kenyan people have lost the memories of the distinct
patterns of violence that happened after the 2007 elections or because they do not think that their own
understanding of what happened or what should be done to resolve the judicial
questions of the day have been addressed by the ICC intervention. As Dr
Luis Franceschi, the Dean at the Strathmore Law School in Nairobi predicted,
“What is certain is that law does not operate in a vacuum but in a social
context, so the Supreme Court will have this very much at heart when deciding
(about the petition).”
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| Ruto, Uhuru, Charity Ngilu, Najib Balala, - Jubilee Coalition |
This also calls in the question to review theapproach taken by the ICC – or at least its former Chief Prosecutor - in
selecting of cases to be tried before it especially in light of the fact that
not only are the majority of cases centred on Africa, ‘[a]
review of ICC cases also reveals that some African officials have
instrumentally cooperated with the Prosecutor to indict their political
opponents, further diminishing the impartiality of the Court.’
6.0 ‘Rethinking’ the
role of the Kenyan Citizen
The aforementioned state of affairs is yet another
example of the need to re-evaluate the role of the law and how it is
constructed and created. It signifies that far from the legal positivist
approach to law as the means within which society resolves its issues, our
focus should be on the role played by the individual citizen-subject in any
legal decision. Those of us who are concerned about peace and transitional
justice and the debates surrounding these two issues, have once again
encountered a situation similar to the outcome of the 2008 Juba Peace process,
where the parties to the Agreement shunned a one-sided approach to the
resolution of multi-faceted disputes in the pursuit of justice and at the
expense of peace and social cohesion.
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| Maasai line up to vote, March 2013 |
While the ICC was meant to be but one option of achieving
peace and stability by bringing those accused of the most heinous crimes to
book, the rhetoric surrounding the efficacy of the ICC - as seen by the
reaction of the diplomats mentioned above - is that the ICC is a ‘silver arrow’
that will end all and resolve all. However, the Kenyan people, like the parties
to the Juba Peace process involving the Government of Uganda and the LRA, have
shown that while the ICC intervention is welcome, these are more complex issues
to be dealt with. Hence, the need for reconciliation like in RSA, compensation,
memorisation, amnesties, truth telling et al.
It is therefore not enough to say that since the
Kenyan people supported the ICC intervention when the option was presented five
years ago, they should therefore not be seen to retract or act contrary to that
view. Rather, it should be a wake-up call for those of us involved in
transitional justice issues, to query whether the votes given to these ICC
indictees are also a referendum to the work we have been championing and
advocating in the name of peace and justice. The Kenyan people may indeed have
forgotten the patterns of violence that occurred as Muthoni suggests, but even
more importantly, those victims who remain in the IDP camps may have
realised –as Muthoni suggests- that the symbolic trials will not help them
recover their land or to deal with the day to day socio-economic challenges in
their communities -be they housing, tribal politics, employment, poverty etc.
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| Kenyans Voting March 2013 |
This should also make us realise that the coalition
between the Kikuyu tribe (represented by Uhuru Kenyatta), and the Kalenjin
tribe (represented by William Ruto) who were on opposing teams in the last
election, is a good thing that should be applauded and supported. Equally
important to note is that since the March election, former Presidential
aspirant Wycliffe Musalia Mudavadi, from the Maragoli who are the second largest tribe of the 6
million-strong Luhya nation in Kenya, has since joined the ‘Uhuruto’ Jubilee
coalition.
One of the interpretations of this move is that there is a desire to move on
and advance the cause of the nation; while on the other hand, it might be
merely political survival that drives them. Whichever way, what is important to
note is that the individual subject should be seen in
their role as a 'law inventor' and not merely as 'law abiding.'
More attention should be given to the fact that
this individual-citizen-subject might sometimes contradict themselves
and sometimes agree across or within the tribal divide or other social
stratification. Neither should we forget that many of these individuals are
victims on one hand but also perpetrators of the same violence they seek
recompense for. Their needs therefore,
cannot be essentialized and they should not be seen as having a homogenous
attitude to the judicial or reconciliatory questions of the day.
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| Charity Ngilu, Ruto, Uhuru, Najib Balala, - Jubilee Coalition |
This means that the Luo mother of two children who
might have been fathered by a Kikuyu or Kalenjin, might have voted differently
since 2002 but still chosen to remain married to her Kikuyu or Kelenjin husband
or boyfriend. She could have voted for Kibaki and the
National Alliance Party of Kenya
(NAK) in 2002 and then made a switch to vote for Raila Odinga and ODM in the
2007 elections, and then for Kenyatta in the just concluded 2013 March
elections. The point being made here is that whereas the Kenyan populace
remains highly ethicized, there are parallel and sometimes
complementary reasons why one would vote for one party in one election and then
for another in the next. Similarly, there are diverse reasons why one would
vote for the ICC indictments but not support the trial of Mr. Kenyatta and Mr.
Ruto.
Some of the reasons could be the mere comments by
the western diplomats which were seen as a form of patrimonialism, it could be
that they came to a realisation that all Kenyans were, victim-perpetrators, or
that there was selective prosecution by the ICC, or they agreed or believed in
the manifesto of stability and continuity of the past government's favourable
plans and the progress towards socioeconomic stability, et al. Therefore, by
appreciating the fact that the citizen/ legal 'subject' possesses a transformative capacity that enables them to
produce legal knowledge and to fashion the very structures of law that
contribute to their legal subjectivity', should give us a better way to
understand the judicial needs of a post conflict society rather than assuming
the high horse of pursuing an abstract form of justice that is devoid of the
social context within which it should ideally emanate.
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| Dr Christian Turner, British High Commissioner to the Republic of Kenya with Kenya Chief Justice Willy Munyoki Mutunga |
It is in this light that Paul Moorcraft, director of the Centre for Foreign Policy
Analysis has noted that the ICC cases have been put in an awkward situation
because, not only is the ICC perceived as a neo-colonial intervention ( even if
in this case, the referral was made by the Kenyan State itself), but more
crucially, " the original indictment was (meant) to try and get
some stability after the previous bloody (2007) elections and now the
indictment if it continues, could undermine this very peaceful
election, and as a result, the 'whole purpose of the international intervention
is being undermined.' For Mr. Moorcraft therefore, one of the problems with the
ICC is the law of unintended consequences." He opines that the ICC is now
seen as being tied in a knot where it is seen as the reason for frustrating
Kenya’s attempts to move forward and resolve its own issues.
7.0 Way
forward
The above therefore shows that the western
diplomats have been put in a catch -22 position. On the one hand, the Kenyan
people have spoken through the ballot in what some have considered as a referendum against the ICC, the election has been declared
by independent observers as free and fair, the election results have been confirmed
by the Supreme Court of Kenya, the President-Elect and Vice President- Elect
remain willing and able to defend themselves before the ICC, and the President-Elect
and Vice President- Elect maintain their
innocence and promise to support any interventions in the country that will
help to find a process in which justice and reconciliation can be
achieved. On the other hand, it is clear that the Kenyan people seem to
have different judicial priorities or views about the ICC process: the ICC
cases remain symbolic but there isn't a homogenous view of what symbolism they
offer - for some the ICC is selective prosecution while for others it is
retributive justice whose roots go beyond the 2007 and 2013 elections, to
questions about land distribution, the sharing of the national cake, tribal
politics as seen by the way different communities voted along ethnic lines and
so on.
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| 2008 Post Election Violence victim with arrow in head |
So, while the international crimes division has been created in the High
Court in order to try mid level and other higher level people implicated in the
2007 post election violence, it is important that Kenya's development partners
are seen to support diverse processes which not only address the different
judicial needs of the victims, but also seek to bring reconciliation across the
ethnic divide. As aptly put by Muthoni Wanyeki, people have to be pragmatic and
resolve these issues as Kenyans and on Kenyan soil. They need to find a process
for restorative and punitive justice for all those who are not represented in
the cases before the ICC.
It is therefore my hope, that those in crucial
positions of leadership, including the media, should be seen to promote the
tenets of due process in addition to upholding the rule of law and good
governance regardless of the situation in which they find themselves. There
should be no reason for those we consider as rogue to highlight examples of
situations where law respecting societies have faltered.
ENDS
...........................................................................................
See Dr Tim Murithi., Policy
Brief No 10: The African Union and the International Criminal Court: An embattled
relationship? available at
http://ijr.org.za/publications/pdfs/IJR%20Policy%20Brief%20No%208%20Tim%20Miruthi.pdf
last accessed March 17 2013.
"[T]he law that lawyers practice and judges declare is not a definitive,
capital 'L' law that many would like to think exists," Judge Sotomayor
said in her 1996 lecture at Suffolk University Law School, summarizing Judge
Frank's 1930 work entitled "Law and the Modern Mind". Confidence in the legal system falters, she
said, because the public "expects the law to be static and
predictable" when in fact courts and lawyers are "constantly
overhauling the law and adapting it to the realities of ever-changing social,
industrial and political conditions." Jess Bravin , Legal Realism Informs
Judge's Views’ available at http://online.wsj.com/article/SB124346735555660341.html
last accessed March 17 2013. See also Sonia
Sotomayor, ‘This wealth
of experiences, personal and professional, have helped me appreciate the
variety of perspectives that present themselves in every case that I hear.’ available at http://www.brainyquote.com/quotes/authors/s/sonia_sotomayor.html#YehJsRKogto57oWF.99
last accessed March 17 2013.
[6]See UGANDA v.
COMMISSIONER OF PRISONS EX PARTE MATOVU (1966) E.A. where the Court justified
the unconstitutional takeover of government by stating that “Applying the
Kelsenian principles, which incidentally form the basis of the judgment of the
supreme court of Pakistan in the above case, our deliberate and considered view
is that the 1966 constitution is a legally valid constitution and the supreme
law of Uganda, and that the 1962 constitution having been abolished as a result
of a victorious revolution in law does no longer exist nor does it now form
part of the Laws of Uganda it having been deprived of its de facto and de jure
validity. The 1966 constitution, we hold, is a new legal order and has been
effective since April 1966 when it first came into force”. See also 'The State
v Dosso [1958] 2 PSCR 180 (Pakistan)
‘‘Those
Western countries who had warned about the consequences of voting for Uhuru
Kenyatta and running mate William Ruto because of the charges they faced at the
International Criminal Court, now maintain a discreet silence. Some are
briefing journalists that they find the election results entirely convincing,
echoing the cautious assessments released by international observers such as
the African Union, the Commonwealth and European Union (which contributed some
$100 million to the cost of the election).’’ See Patrick Smith, ‘The
West wobbles as Odinga tests election in the courts,’ Africa Confidential, 18th
March 2013, available at http://www.africa-confidential.com/blog-entry/The+West+wobbles+as+Odinga+tests+election+in+the+courts
last accessed March 18 2013.
See Ocampo 6: Kenya braces for
ICC decision,’http://www.rnw.nl/international-justice/article/ocampo-6-kenya-braces-icc-decision
last accessed March 17 2013.
BERNARD NAMUNANE, ‘Uhuru ICC
trial set for July’ Thursday, March 7, 2013 available at
http://www.nation.co.ke/News/Uhuru-ICC-trial-set-for-July/-/1056/1714260/-/387ppa/-/index.html
last accessed March 17, 2013.
Felix OlickUhuru says his ICC case cannot stand without
Muthaura’sMarch 12 2013
The US has now congratulated Uhuru: "Now that
your election has been confirmed, you have the opportunity to build on the
promise of Kenya's Constitution and solidify its place as a vibrant and
prosperous democracy centered on the rule of law," Obama said. See ‘Kenya:
Barack Obama Congratulates Uhuru, Ruto’ The Star, 6 April 2013 available at http://allafrica.com/stories/201304060631.html last accessed April 9 2013.
Kenya Supreme Court upholds
Uhuru Kenyatta election win, 30 March 2013 http://www.bbc.co.uk/news/world-africa-21979298 last accessed
March 17 2013. See also See ‘Kenya: Barack Obama
Congratulates Uhuru, Ruto’ The Star, 6
April 2013 available at http://allafrica.com/stories/201304060631.html
last
accessed April 9 2013.
‘Mudavadi
signs pact with Jubilee Coalition’, Sabahionline, March 17, 2013 available
at http://sabahionline.com/en_GB/articles/hoa/articles/newsbriefs/2013/03/17/newsbrief-06
last accessed April 9 2013. See also Kenfrey Kiberenge, ‘President elect Uhuru,
Mudavadi in post-election pact’ The Daily Nation, Saturday, March 16
2013 availale at http://www.nation.co.ke/News/politics/Uhuru-and-Mudavadi-in-post-election-pact/-/1064/1721918/-/format/xhtml/-/nv2wucz/-/index.html last accessed April 9 2013
