Why Ocampo must proceed with his case

In January's issue of Nairobi Law Monthly, my senior, John Khaminwa, makes startling inferences based on Attorney-General Amos Wako's remark that the ICC Prosecutor, Luis Moreno-Ocampo, "faces a daunting task in gathering enough evidence to prosecute those who bear the greatest responsibility for the post-election chaos." Mr. Khaminwa argues that because the A-G is an insider, he must be taken to know professionally what he is talking about. That the A-G's statement is proof that the ICC Prosecutor may not be able to gather evidence sufficient to sustain a successful prosecution at The Hague and that he may not have evidence where he thinks he does. He further argues that Kenya has a strong Bar and a strong Judiciary, and that when the Constitution and the legal system are invoked, it may be impossible for the ICC Prosecutor to proceed with his case at The Hague. He calls on Mr. Moreno-Ocampo to seek the opinion of a Kenyan advocate with sufficient experience and expertise to advise him on whether it is advisable to proceed with the prosecution, for he may find that in the light of the changed circumstances, including the appointment of a new director of Public Prosecutions, a new Chief Justice and a new A-G, it may be profitable that Kenyans dealt with the PEV cases on their own, rather than relying on what may eventually be an imperfect investigation and prosecution by the ICC Prosecutor.

It is impossible to know from the public documents released by the ICC Prosecutor what kind of evidence he is relying on for his case. It may be that he recognises that the Kenyan establishment, of which Mr. Wako is an integral part, has willfully and deliberately refused to collect evidence and witness testimonies sufficient to sustain a prosecution and may have interfered sufficiently in investigations into the crimes committed in 2007 and 2008 to warrant the A-G's conclusion that the ICC prosecution would be a failure. It may be that Mr. Moreno-Ocampo has studied the manner in which politically sensitive prosecutions are conducted in Kenya and decided that he is in a position to serve the interests of the Kenyan people better than the A-G, the DPP or the political establishment ever could.

Mr. Khaminwa invokes the spirit of our elaborate new Constitution to warn Mr. Moreno-Ocampo off the prosecution. He is confident that Kenya's Bar, Judiciary and prosecution machinery is now sufficiently robust to handle the investigation and prosecution of offences committed in the PEV. This flies in the face of the realities on the ground. Since the National Accord was signed between Raila Odinga's ODM and Mwai Kibaki's government in 2008, the government has studiously refused to admit that some of its seniormost officials were responsible for the violence that rocked the country. It has done nothing to redress these crimes; indeed, it could be argued that failure to conduct credible investigations and to try suspects within the present criminal justice system is proof positive that the political and legal will to address the PEV is sorely lacking. There was nothing that stopped the Attorney-General's office from ordering the Commissioner of Police to investigate the crimes committed in 2007 and 2008; but, given that senior police officers in both branches as well as senior government officials, as named by the ICC Prosecutor, may have been at the helm of the violence, it would be like the wolf guarding the hen-house. How were they to conduct impartial, independent investigations and prosecutions if they themselves were culpable in the crimes? The failure of the government to set up a credible independent, impartial judicial mechanism to address the PEV should be considered when addressing the question of whether Kenya should rely on the ICC for justice or not.

Mr. Khaminwa ignores the fact that the majority of Kenyans who have been polled by polling agencies support the trial of the ICC suspects at The Hague. This is not a small matter. Even senior advocates of decades experience are convinced that The Hague Option is the most viable. Part of their argument relies on the fact that regardless of the lofty ideals of the Constitution, the country has not transformed itself sufficiently for Kenyans to repose full faith in the Judiciary. Witness the manner in which the Judiciary waded into the boundaries review matter and all talk of a strong Judiciary is suddenly seen as wishful thinking. Mr. Khaminwa is right that the ICC Prosecutor must bring an iron-clad case to The Hague, or the results may be devastating for the nation. Even Mr. Khaminwa must admit that evidence is not based solely on eye-witness testimony, but also on documentary and other circumstantial evidence. If Mr. Moreno-Ocampo relied only on eye-witnesses, he may not even have gotten past the Pre-Trial Chamber when he first requested permission to investigate the Kenyan Situation. The ICC's Justice Hans Paul Kaul hinted as much when he voted against giving the ICC Prosecutor permission to proceed with his investigation.

Finally, it would be foolhardy to presume that the ICC Prosecutor has not taken into consideration the statements and actions of the Government of Kenya, the two Principals, the Six Suspects, the Attorney-General and other persons. Any prosecutor worth his salt must consider these things if he is to successfully prosecute his case. Mr. Wako makes a poor template on which to assess the chances of success or failure of the ICC prosecution. His record as A-G has been anything but stellar. It is no longer moot that Mr. Wako's long tenure as A-G has been a study in gate-keeping on behalf of the powers-that-be and it could be that his statements regarding the strength of the ICC Prosecutor's case may be based on his experience as the master of obfuscation and cant. If it had been left to the State Law Office and the Kenyan Judiciary, this matter may have laid in cold storage for all eternity. It is to our benefit that the ICC Prosecutor proceeds with this matter regardless of the sage advise of Mr. Khaminwa.