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January 21, 2019

Open Letter to New ICC Prosecutor Fatou Bensouda

I salute you Madam and belatedly congratulate you for appointment as the Chief Prosecutor of the International Criminal Court. You can either redeem the future of the court as an institution or go down the annals of history as the last prosecutor of the court. As an African from across the waters of River Gambia, you must be cognizant that outside Africa, if you ask ordinary people what they know about the ICC, they will probably think you are talking about the International Cricket Committee or the International Chamber of Commerce.

Without exception, all your clients are African. The witnesses, both defence and prosecution are African. They fly mostly Western airlines, sleep in European hotels and spend millions of Euros while attending a court in Europe. The ICC represents a colossal resource drain from Africa, reminding one of that classic book, “How Europe underdeveloped Africa”.

So proudly African is the ICC that even in the wake of untold human crisis in Damascus, Homs and Aleppo, you have not deemed it timely to open what you would call “The Situation in the Arab Republic of Syria”. Of course you are aware that doing so would have the Arabs on the street sdemanding that you open an investigation into the Israeli atrocities in Gaza and West Bank. For this geopolitical consideration, the ICC has to remain an exclusive African Affair.

The purpose of my letter Madam Fatou is about the situation in the Republic of Kenya which is supposed to be proceeding to trial in the next 7 months. You have been reported to have complained recently that most witnesses are shy or not confident enough to testify and therefore you have applied to meet them to jog their memories and boost their confidence.

When I read that, I felt really sorry for you. I had written before in this newspaper column that all that your predecessor Louis Moreno Ocampo was interested in, was to see that the Kenyan cases proceed to trial irrespective of whether they are winnable or not. Of course Mr. Ocampo knew that the threshold for confirmation of charges was slightly lower than a kangaroo court and secondly that he would not be in the office when the cases come to trial.

The result? You have inherited a case whose assured end game is fFailure with a capital ‘F’. Mr. Ocampo tricked you that he had witnesses. What he did not tell you is that he used nothing but dubious conmanship to acquire witnesses at all cost. You are gravely mistaken if you think the reason most of the so called witnesses are shying away from testifying is because of intimidation or bribery as you allege.

My rational analysis is that their conscience is tormenting them. They knew deep down their hearts, that they were used by Mr. Ocampo to fix innocent people. They also know that these sham trials are not helpful to peace and reconciliation in their motherland, more so at this time when the country is gearing for another election.

What is most intriguing is that until now, Ocampo had informed the world that all the witnesses were safe outside Kenya. In fact the only person who appears to have the GPRS coordinates for the witness locations is one Prof Makau Mutua, an ICC consultant even listed on your website, who frequently reveals their names and locations in his weekly newspaper column.

When you complain about witness tampering, we wonder whether you are referring to Prof Makau Mutua, the only man to have confessed access to or knowledge of the witness locations in their overseas havens. The other secret that your predecessor kept to himself is that he overwhelmingly relied on the so called intermediaries to investigate on his behalf.

You are well aware that even the ICC judges, in the Lubanga Dyillo ruling, expressed outright indignation at the use of intermediaries in carrying out investigations. Now, madam, there are intermediaries and Kenyan ‘intermediaries’. Why do I say this? I will cite just two cases to illustrate this. It is an open secret that among the authorities that Ocampo heavily relied on is the report of the Kenya National Commission on Human Rights (KNCHR).

At the time of writing the report, the vice chairman of the KHCHR was one Omar Hassan Omar, a man who was accused in the Kenyan media by then potential witnesses of ‘assisting’ them in their evidence. Well, there is nothing wrong in doing so. The only problem is that Mr. Omar is still a vice-chairman, this time of the ‘Friends of Raila’ (FOR A) campaign outfit. FOR A, for your information Madam is the official campaign team for one of the candidates for the Kenyan Presidential election expected in the next six months.

Mr. Omar is also seeking to be the senator of the County of Mombasa on the ticket of the ODM, one of the parties participating in the Kenyan election. It is illuminating that within the Kenyan context, one can hop, step and jump from being the vice chairman of a statutory human rights body to the vice chairman of a presidential campaign team without as much as batting an eyelid. The two titles can be used almost interchangeably. That is Kenya for you, Ms Bensouda.

The second case is even more glaring; an embodiment of real impunity if there was one. In early 2010, I attended an ‘outreach and sensitization’ workshop at Kenya’s Nairobi Club. I was not officially invited to the workshop and I was in fact denied an opportunity to speak at the forum even after begging to be allowed to do so. In the workshop were officers from the Office of the Prosecutor. They were in the country to conduct ‘investigations’ in the Kenyan situation.

All this is perfectly in order. The only problem is that the host and convenor of the workshop was one Wambugu Ngunjiri of Change Associates. The forum was addressed by among others Paul Muite, Ms Muthoni Wanyeki of the Kenya Human Rights Commission and Mr. Njonjo Mue alongside the ICC investigators.

Now, there is nothing wrong with all these. The only problem is that today, the host and convenor of the workshop, Mr. Wambugu Ngunjiri, has since declared that he is a campaigner and supporter of Mr. Raila Odinga, a presidential candidate in the forthcoming Presidential election.

These two instances should call for serious introspection from you. My analysis is that you could be genuine in wanting to have a logical conclusion of the Kenyan cases. What you may not know is that the Kenyan cases are mere cogs in the Kenyan political web of intrigue.

Unfortunately, your predecessor Mr. Ocampo not only knew that but actually designed it that way.I may not know anything about the Kenyan witnesses whom you are complaining about but I know about two potential witnesses whose plight you should be seized of immediately.

One of them, Mr. Tony Gachoka has approached your office volunteering to assist you with evidence that may help your own understanding of the Kenyan situation. Information in the Kenyan media points to reluctance, or even refusal by your office to grant Mr. Gachoka an opportunity to tell you what he knows. The information he claims to have appears to have been gathered not when Mr. Gachoka was working as a trader in the Kenyan thriving second hand goods market, but when he was working as a senior civil servant in the government of Kenya.

Not only has the Government of The Netherlands denied him a visa to the Hague in contradiction of established international norms including the Geneva convention and the United Nations Charter on Human Rights, but also European Union member countries especially the United Kingdom and Germany have made public comments which clearly show they have a hidden agenda in Kenyan politics.

These comments appeared like refrains from the cue by the choir leader, Secretary of State Hillary Clinton from the United States which is not even a signatory to the Rome Statute! The second potential witness is Mr. Miguna Miguna, another former senior servant.

He has said publicly that he has information that does not appear to be currently within the ambit of your office and the court as far as the situation in the Republic of Kenya is concerned. If you are to be seen to be helping the Kenyan cases, I would urge you to arrange for urgent meetings with the two senior Kenyans and if necessary place them under witness protection.

In conclusion, I would like to assure you that all Kenyan people, not least myself are against the culture of impunity that we have witnessed in this country for decades. Where we differ with your office and more so with your predecessor is the use of the Kenyan cases to achieve a predetermined political outcome. I still have faith that under your leadership, Jesus and Barrabas will switch the positions in which they were erroneously and mischievously placed by Louis Moreno Ocampo.


The writer is a political and public policy analyst. Twitter : @HonMosesKuria ; Facebook: Moses Kuria

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