The quality and genuineness of Kenya’s ability to investigate the PEV suspects came into sharp focus, rendering the Court’s decision last year to dismiss Kenya’s application challenging the admissibility of the case against six prominent Kenyans following the contested 2007 Presidential Election. The Court adopted a process where the quality of a State’s investigation or prosecution is always subject to the Court’s consideration. This was meant to deter States from merely opening unsubstantial investigations or prosecution so as to stall ICC investigations.
Who is to blame?
Kenya was set to establish its own tribunal at the national level to prosecute those who were responsible for the post election violence. However the government failed to meet the set deadline to establish a local tribunal. Being party to Rome Statute, Kenya inadvertently (used loosely here) created a loophole for ICC to intervene and is now obligated to co-operate fully with the Court in investigations and prosecutions of crimes within its jurisdiction.
Sometime last year the Kenyan government established the Commission of Inquiry into the PEV, chaired by Judge Philip Waki to investigate the violence and particularly the actions of the police. The Waki report recommended the establishment of a special tribunal to prosecute the perpetrators of these heinous crimes. The two principals (President Mwai Kibaki and Prime Minister Raila Odinga) supported the formation of the same but the idea was rejected by the national assembly. This prompted Waki to forward his report to Kofi Annan together with a list of the names of those he considered most responsible for the violence. Interestingly enough, the Waki commission delivered a copy of his report along with six boxes of documents and supporting materials to the International Criminal Court along with a sealed envelope containing a list of people who could be implicated in the violence. The ICC gave Kenya the opportunity to establish a local tribunal before referring the case to the ICC Prosecutor Luis Moreno Ocampo.
The advisements to have Waki submit the contents of the six boxes and the sealed envelope to ICC is now the subject of debate. Blame has been apportioned to various quotas, the Premier taking the bulk of these accusations as the accused read mischief into the way the entire process was handled. Suspicions by the accused and their sympathizers alike have created a new dimension in the local politics. Now we are seeing an emergence of alliances previously thought impossible in the quest for self preservation.
The narrow view by ICC to prosecute the PEV suspects without thorough considerations as to the grass-root implications is naïve to say the least. Physical incarceration of a suspect does not uproot the sentiments and reactions of the people they represent. Every normal human being possesses the ability to perceive his or her environment not solely from the advice of an influential figure but from different sensual channels and form his or her own opinion. The ICC indictments may scare a few political bigwigs but not the masses they represent. Any frustration being borne by the local citizen desperately desiring an audience will find a way to express itself peacefully or otherwise without a nudge from anyone.
I am not advocating legal systems be setup to counter the wheels of justice to protect the perpetrators of these crimes. I believe the process should be divorced from political manipulations because abuse and misuse of indictments against African leaders may not necessarily deter future crimes from happening. Instead the credibility of this Court may be eroded if perceived to serve the interest of the powerful western nations and their local cronies.
Annotations
It is trite to state that the jurisdiction of the International Criminal Court (“ICC” or the “Court”) is complementary to the criminal jurisdiction of national courts. Due to both reasons of respect for State sovereignty and the practical constraint of limited resources, it is first and foremost the duty of national courts to effectively investigate, prosecute and punish the perpetrators of the most serious crimes of international concern. Thus it is only when a State fails in that duty, either through an inability or unwillingness to fulfill it, that the ICC may seek to step into the shoes of that State and assert jurisdiction. This is the principle of complementarity.
The situation in Kenya is the first instance in which the Prosecutor of the ICC has exercised his proprio motu powers (the independent ability of the Prosecutor to initiate his/her own investigations and cases). Kenya is also the first State to raise a challenge to the admissibility of a case. This is therefore an important and informative decision. Crucially, it further illuminates the principle of complementarity which underpins the jurisdiction of the ICC. Indeed, as the Appeals Chamber itself expressly acknowledged, this is the first occasion on which the ICC has had to rule on the issue of whether a national investigation being carried out by a State must always concern the same person(s) involved in the case before the ICC (para. 34). The Appeals Chamber has responded by answering that question in the affirmative (the decision of the dissenting judge, Judge Anita Ušacka, is yet to be filed). In so doing, it has revealed a robust approach as to what the content of a national investigation by a State must embody to render a case inadmissible before the ICC. With the Court possessing a stated determination to end impunity, this is perhaps unsurprising.
Interestingly, it should be borne in mind that this was not a decision in which the Court determined that Kenya was either: “unwilling or unable” to genuinely carry out its investigation. Rather, it was the inability of Kenya to provide sufficient evidence to convince the Court that it was investigating the same individuals now suspects before the ICC which resulted in its challenge to admissibility are dismissed. Charges hearings will now take place for all six men during September 2011.
http://www.ejiltalk.org/clarifying-the-principle-of-complementarity-the-icc-confirms-admissibility-of-case-despite-investigation-by-kenya/
"The fact that the ICC has focused so overwhelmingly on African situations prompts questions about why the gaze of international criminal justice falls in some places and on some people and not on others. The Court's focus on Africa has stirred African sensitivities about sovereignty and self-determination - not least because of the continent's history of colonisation and a pattern of decisions made for Africa by outsiders," say Nicholas Waddell and Phil Clark in their seminal work, Courting Conflicts? - Justice, Peace and the ICC in Africa, So far, the Court has indicted 27 Africans from seven countries. Why? What lies behind the focus on Africa?
The ICC’s actions have provoked furious debates over the Court’s potential impact, its exclusive focus on Africa over other parts of the world, its selection of cases, and the effect of its indictments and prosecutions on peace processes on the African continent. Over-zealous evangelism has been caught up in double standards, hypocrisy, racial stereotyping, and national and personal agendas.
Prof Mahmood Mamdani, the influential Ugandan academic notes that: “The ICC’s attempted accommodation with the powers that be has changed the international face of the Court. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. Even then, its approach is selective: it targets governments that are adversaries of the US and ignores US allies, effectively conferring impunity on them.”
There is no doubt that the ICC has deliberately sought out Africa. This is quite simply because the Western European states and NGOs at the heart of the ICC see the continent as a “free-fire zone” in which to experiment with a questionable European legal model, established by a flawed statute.
http://www.newafricanmagazine.com/special-reports/sector-reports/icc-vs-africa/icc-a-tool-to-recolonise-africa
The International Criminal Court prosecutor Ms Fatou Bensouda has refuted claims that she is using the ICC trials to front foreign interests in Kenya's upcoming general elections.
In a meeting with President Kibaki and Prime Minister Raila Odinga, the prosecutor assured the coalition principals of an impartial and independent trial for the Kenyan suspects.
http://www.nation.co.ke/News/politics/Bensouda+No+foreign+interests+in+ICC+trials/-/1064/1539908/-/fbmv8cz/-/index.html
Bensouda said trials of Africans are for Africans because the alleged victims are Africans. "We say that ICC is targeting Africans, but all of the victims in our cases in Africa are African victims. They are not from another continent. They are African victims and they are the ones who are suffering these crimes," said Bensouda.
http://www.voanews.com/content/article--african-union-says-icc-prosecutions-are-discriminatory-125012734/158424.html
ICC Indictees to Date
Name
- Joseph Kony
- Raska Lukwiya
- Okot Odhiambo
- Dominic Ongwen
- Vincent Otti
- Thomas Lubanga Dyilo
- Bosco Ntaganda
- Ahmed Haroun
- Ali Kushayb
- Germain Katanga
- Mathieu Ngudjolo Chui
- Jean-Pierre Bemba
- Omar al-Bashir
- Bahr Abu Garda
- Abdallah Banda
- Saleh Jerbo
- Callixte Mbarushimana
- Mohammed Ali
- Uhuru Kenyatta
- Henry Kosgey
- Francis Muthaura
- William Ruto
- Joshua Sang
- Muammar Gaddafi (deceased)
- Saif al-Islam Gaddafi
- Abdullah Senussi
- Laurent Gbagbo
- Abdel Rahim Hussein
- Sylvestre Mudacumura
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