Friday, 2 August 2013

KENYA-ICC: Fatou Bensouda & Kenya's case

Fatou Bensouda, chief prosecutor of the International Criminal Court, is doing all she can to put Kenyan President Uhuru Kenyatta behind bars. But the hurdles are high, and failure could spell doom for the dream of global justice.

Bensouda was named chief prosecutor in The Hague in June 2012. She is seen as a symbol of African progress. However, it is becoming clear that her influence is greatly limited. When she indicts powerful people, like Kenya's president and vice-president, she is dealing with more than just the high-powered lawyers they hire. She also faces intimidation by those capable of manipulating public opinion in countries racked by civil war and turning it against a court that operates far away from the scenes of the crimes it addresses.

Fatou Bensouda, 52, and her team have taken the bold step of indicting 51-year-old Kenyan President Uhuru Kenyatta. But in this case, there is a stark contrast between their aspirations and reality. At the moment, Kenyatta's attorneys seem to have the upper hand. They have demanded that the case be dropped, arguing that there is no evidence to prove that their client is guilty. In mid-June, they managed to postpone the planned court date a second time, this time for four months, on the grounds that the prosecutor's office had not produced evidence on time.

The court began prosecuting crimes against humanity 11 years ago, but its track record has been deplorable. This is partly due to sloppy investigations and the arrogance of Bensouda's predecessor, Luis Moreno-Ocampo.  So far, the ICC can boast of only one conviction, and that in a case relating to a second-tier defendant.

In 2012, the ICC sentenced Congolese militia leader Thomas Lubanga to 14 years in prison for using child soldiers as cannon fodder. Arrest warrants have been issued against other butchers, like Sudanese President Omar al-Bashir and Ugandan warlord Joseph Kony -- but the men are still at large, because they are too important to be extradited.

The ICC is currently investigating eight cases, all of them in Africa -- a situation which has engendered criticism. The prosecution of crimes by the ICC has degenerated into "race-baiting," Ethiopian Prime Minister Hailemariam Desalegn said at the African Union (AU) summit in Addis Ababa at the end of May. In a resolution, the leaders of AU member states demanded that the case against Kenyatta be dismissed and remitted to the courts in Nairobi.

Bensouda calls the attacks "outrageous''. She pointed out that she herself is black and investigates cases without regard for skin color or nationality. "It is indisputable that Africans are being raped, displaced, tortured and held as child slaves by other Africans. Almost defiantly, as if to embolden herself, she reportedly said: "We will bring Kenyatta to trial here in The Hague, and I am very optimistic that we will achieve a guilty verdict against him and his vice-president, William Ruto."

But despite Bensouda's optimism, Kenyatta continues to reside in an opulent mansion next to the State House, the president's official residence in the Kenyan capital of Nairobi. Kenyatta is the country's largest landowner and he also controls its largest bank, not to mention a major hotel chain.
With an estimated net worth of $500 million (€378 million), Kenyatta is one of the 25 richest and most powerful men on the continent.

Kenyan politics reflects the extent to which a handful of clans dominate the country. Fifty years ago, shortly after independence from Great Britain, a Kenyatta and an Odinga competed for power. In March 2013, nothing had changed except the first names of the contenders. The sons, Uhuru Kenyatta and Raila Odinga, had followed in the footsteps of their fathers, Jomo and Oginga.

The scourge of nepotism is compounded by ethnic division, in a country whose leaders are more likely to champion the interests of their tribes than ideologies or political platforms. They procure jobs and perks for their "blood brothers" and, if need be, they incite ethnic groups against one another, sometimes to the point of tribal wars.

The Kenyattas are part of the Kikuyu tribe, which makes up more than 20 percent of the population in Kenya and is the most economically successful ethnic group. Kenyatta did not run for the presidency in the December 2007 election, choosing to support Mwai Kibaki, a fellow Kikuyu, instead. After a highly disputed vote count, Kibaki was declared the winner and promptly sworn in. In the ensuing mayhem, members of the Kalenjin, Luhya and Luo tribes (US President Barack Obama's father was a member of the Luo tribe) exacted bloody revenge on the "imposters." The Kikuyu then struck back.

Before long, villages were fighting villages. In some "mixed" regions, it was street against street. It was only through the intervention of then UN Secretary General Kofi Annan that the situation settled down after a few weeks. But by the time the slaughter had ended, there were 1,100 dead with more than half a million people having been driven out of their home provinces. The country was divided by hate.

At the urging of a Kenyan judge, the ICC turned its attention to the instigators of the violence. In early 2012, the court in The Hague confirmed charges against Kenyatta and Ruto, his rival from the Kalenjin tribe. But can someone be locked up for this indirect form of culpability? And can prosecutors in the Netherlands prevail against men who are sufficiently cunning and unscrupulous to exploit racial hatred? In other words, can these crimes even be defined in legal terms? That is the existential question the ICC faces.

When it became clear that the two men were to be dragged before the world court, Kenyatta and Ruto devised a clever strategy: They joined forces to form a political alliance of convenience, the Jubilee Alliance. Before long, without any aspects of the 2012 massacres having been cleared up, they began campaigning for election together.

For much of the campaign, it looked as they had little chance, with Odinga -- the opposing candidate and a member of the Luo tribe -- maintaining a solid lead. But then Johnnie Carson, head of the Africa division in the US State Department at the time, publicly threatened "consequences" if the Kenyans voted the two men, who had been indicted by the ICC, into the country's highest offices.

The threat provided Kenyatta with fodder for his campaign. From then on, whenever he made a campaign appearance he would ask his "sovereign people" whether they should allow foreign powers to dictate to them their choice of national leaders. Kenyatta turned the election into a fight against foreign intervention and the "Western diktat." The overwhelming majority of Kenyans were unaware of the ironic fact that a London PR firm had developed the campaign strategy for Kenyatta -- and that British lawyers make up the bulk of his defense team for the ICC trial.

Kenyatta won an absolute majority, with 50.07 percent of the vote. Observers noted that voter turnout was implausibly high, at 86 percent. Rival candidate Odinga suspected fraud and took his case to the country's supreme court, but it turned a deaf ear to his petition challenging the election results.

Of course, the West failed to make good on its threats to impose sanctions. Kenya's cooperation as a strategically important country in the fight against terrorism in Somalia and Sudan is too important to Washington, Paris and London, and they are also eager to prevent China from trumping the West in Nairobi. The new president has been self-confident recently, saying that he would cooperate with the ICC, submit to questioning by video link and, if necessary, even appear in person before the court in The Hague.

Throughout Africa, as well as in the West, doubts are growing as to whether the case has a future at all. Some call the case "a farce," others refer to it as "suicide on the part of the world court." There is a great deal at stake. If the case against Kenyatta were to collapse, the ICC would lose what little authority it still has and would become a tool as useless as it is costly. And it isn't just a matter of the court's survival: The long-cherished dream of global justice seems on the verge of failure.

By Guylain Gustave Moke
Political Analyst/Writer
Investigative Journalist
African Affairs Expert

Photo-Credit: AFP-Fatou Bensouda, chief prosecutor of the International Criminal Court