Monday, March 25, 2013 at 7:39 AM

No (Equitable) Justice in ICC Prosecuting Kenya’s Kenyatta

Posted by Anthony L. Hall

Here, in part, is the reasonable doubt I expressed last year after the International Criminal Court (ICC) indicted Uhuru Kenyatta, son of Kenya’s founding father Jomo Kenyatta, on charges of crimes against humanity.

I wonder what evidence the ICC possesses that ties Uhuru and the three other prominent Kenyans it indicted to the rapes and murders that were committed. And am I the only one who finds it a little too convenient that, of the four indicted, two of them supported [President] Kibaki (namely, Finance Minister and Deputy Prime Minister Uhuru Kenyatta and Cabinet Secretary Francis Muthaura) and two supported [presidential candidate] Odinga (namely, former Education Minister William Ruto and radio presenter Joshua arap Sang)?

Frankly, this seems a contrived attempt by the ICC to forestall more score-settling and communal violence by saying, in effect, a pox on both your houses.

What’s more, I doubt any of these men had any hands-on involvement in any of the violence at issue. And if the charges stem just from inciting and organizing what the BBC described as ‘a bloody round of score-settling and communal violence,’ then surely no two people are more responsible than Kibaki and Odinga themselves. Which makes this rather like blaming Hitler’s generals but not Hitler himself, no?

(“Uhuru Kenyatta…Indicted on War Crimes, The iPINIONS Journal, January 24, 2012)

Well, it now seems my suspicions about the ICC’s evidence were wholly warranted. Because on March 11, 2013, the ICC dropped all charges against Uhuru’s co-defendant, Francis Mathaura, citing the lack of credibility of its star witness.

More important, though, given that the ICC based its indictment against Uhuru primarily on this same witness’s testimony, it can only be a matter of time before prosecutors swallow their pride and drop all charges against him too.

_66450930_66449134Not surprisingly, Uhuru is pressing his case. Specifically, he dispatched his defense lawyer to The Hague last week to prevail upon the ICC to drop all charges against him in light of its Muthaura decision.

But, not surprisingly, the ICC seems determined to save face. For here is how chief prosecutor, Fatou Bensouda, responded:

We will not drop the charges. It’s not a question of if it goes to trial but when it goes to trial.

We still have difficulties with witness intimidation; this is ongoing; it’s not stopping; and I think it will get more serious.

(Reuters, March 20, 2013)

To be fair, prosecutors insist they have other witnesses who can testify to hearing Uhuru order Kibaki supporters to attack Odinga supporters. But this still begs the question: If the witness intimidation that forced the ICC to dismiss charges against Muthaura “is ongoing [and] will get more serious,” isn’t it more likely than not that such intimidation will succeed in compromising the testimony of any witness against Uhuru? After all, he is not only the richest man in Kenya but now the most powerful one too, having been elected as its new president earlier this month.

But let me hasten to clarify that my doubts about the case against him stemmed not from my high regard for his ability to pervert the course of justice. Rather they stemmed from my low regard for the ICC’s evidence against him. Not to mention its indefensible record of selective prosecutions against politicians from poor and less powerful countries. For example:

If Taylor of Liberia can be hauled to The Hague and tried for aiding and abetting atrocities that were committed in Sierra Leone, why shouldn’t Putin of Russia face the same fate for aiding and abetting similar atrocities now being committed in Syria?

(“Liberian president Charles Taylor Convicted in The Hague,” The iPINIONS Journal, April 27, 2012)

2f5385965e2f9ec108a488a023fd0388.articleApropos of this, it is noteworthy that the ICC elected Bensouda, an African woman from The Gambia, as chief prosecutor by consensus in December 2011. For there’s no gainsaying that it did so primarily to counter the growing perception that it is a court of White men sitting in biased judgment against Black men.

No doubt Bensouda hoped to counter this perception further by going out of her way to hire three women as “Special Advisers” to the court, one of whom is also Black.

Never mind the reverse discrimination inherent in the ICC seeking justice only for victims of crimes against humanity committed by African leaders. For there’s also no gainsaying that it has steadfastly ignored calls to seek justice for victims of similar crimes committed by Western leaders, most notably, former U.S. President George W. Bush and former UK Prime Minister Tony Blair with respect to Iraq. Where’s the equitable justice in that?

In fact, Iraqi victims are particularly worthy of ICC attention given that no less a person than former UN Secretary-General Kofi Annan is on record declaring in a September 16, 2004 BBC report that:

The U.S.-led invasion of Iraq was an illegal act that contravened the UN charter.

Come to think of it, the loved ones of dead American and British soldiers who died in vain might also derive some consolation from the ICC indicting Bush and Blair….

In any case, I am willing to bet my life savings that President-elect Uhuru Kenyatta will never set foot in The Hague; and, if convicted in absentia, he will never serve a day in jail. Honestly, all things considered, who could blame him if he proceeded now to use his position as president, as well as prevailing anti-ICC sentiment throughout Africa, to shield himself from arrest?

Nothing demonstrates what an utter joke these arrest warrants are quite like Sudanese leader Omar al-Bashir still living a care-free lifestyle despite the ICC issuing an arrest warrant three years ago – accusing him of genocide for orchestrating the mass killing of Black Africans by Arab militias in the Darfur region of his country. For he has traveled since then with impunity throughout the Continent and, as if to show that he has powerful friends who not only accept but share his authoritarian way of governing, he’s currently on a state visit to China.

(“ICC Arrest Warrant for Gaddafi is a Joke, The iPINIONS Journal, June 29, 2011)

Related commentaries:
Kenyatta indicted
ICC Arrest warrant

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