Kenya’s President Uhuru Kenyatta finally put to rest speculations on whether or not he will appear at the International Criminal Court at The Hague to respond to charges on his role in the violence that erupted in the elections of 2007 in his country. Uhuru did answer in a way that took his critics aback. The decision to honor the ICC appointment was announced to a full house of the Kenyan Parliament in a historic speech, laden with symbolism and anecdotes that even his most ardent critics could be proud of. In announcing his departure for The Hague, the Kenyan Leader indicated that Vice President William Ruto who has been to The Hague himself to answer charges will lead the country in his absence.
Appearing before the Court makes President Uhuru legally and politically stronger says Chief Charles Taku an International Lawyer well versed with the workings of the ICC.
“President Uhuru Kenyatta has gone confidently to The Hague to participate in the last vestiges of a case which ought not to have been confirmed nor allowed to go to the trial phase,” said Chief Taku in an interview with Pan African Visions. A fallout of the ICC trip may be the elevation of Uhuru Kenyatta to an Africa star says Chief Taku who also explains how the Court works, the case against Uhuru and contentious relations between the ICC and Africa.
Kenyan President Uluru Kenyatta is appearing at the ICC and it is the first time a sitting President is doing that, can you situate the importance of this development for us?
President Uhuru Kenyatta has consistently promised to co-operate with the ICC from when the former Prosecutor Mr. Moreno Ocampo brought charges against him for alleged crimes perpetrated during the 2007-2008 post-election violence in Kenya. This decision is in line with that commitment.
He previously appeared during the confirmation of charges proceedings before the Pre-trial Chamber and made a very impressive presentation. His appearance will afford another opportunity to publicly challenge the Prosecution case and to turn what appeared an adversity to his advantage.
During the confirmation proceedings, the cross-examination of the then media tough talking Moreno Ocampo lasted barely twenty minutes. President Uhuru Kenyatta seized on that opportunity to mobilized and convince many Kenyans about his innocence. He also exposed the frivolity of the charges and the weaknesses of the Prosecution case. His presence this time around will remind many people about his brilliant defence in that occasion and further expose the Prosecution as misconceived and ill-motivated. President Uhuru Kenyatta has gone confidently to The Hague to participate in the last vestiges of a case which ought not to have been confirmed nor allowed to go to the trial phase. The admission by the Prosecutor that she lacks the evidence to sustain a conviction should the case proceed to trial at this point in time supports this point of view.
President Uhuru Kenyatta has argued all along that the case against him was politically motivated intended to satisfy varying and distinct interests locally and internationally. The Prosecutor admitted at earlier stages of the case that witness number four, the lone direct witness who incriminated President Uhuru him lied in his witness statement and affidavit concerning the matters about which he was to testify. As a consequence, the Prosecutor withdrew the case against the Head of the Public Service and Secretary to the Government Mr. Francis Mathuara. That decision along with the pre-trial decision not confirming the charges against the Inspector General of Police General Ali, potentially made the possibility of proof of the forms of criminal responsibility alleged against President Uhuru Kenyatta difficult. The decision to pursue the case in the face of this development could not be reasonably explained legally.
President Uhuru Kenyatta is aware of the fact that he is legally and politically stronger appearing before the court. His decision is first that of a smart politician. By his appearance and action, he has solidified the differences between him and his political opponents at home. By temporarily handing over power to his deputy to allow him attend and deal with his case as an ordinary citizen of Kenya, he has prepositioned himself as someone who unlike his main political opponent Raila Odinga is not power hungry and will never rely on people power to claim a political mandate; let alone, sacrifice the people and sovereignty of Kenya for political gain. In a sense, he has reasonably and forcefully, by action used this occasion to argue his case.
Reasonable people worldwide are likely to conclude that he may not be the alleged power seeking individual portrayed in the indictment as someone who perpetrated the crimes alleged to keep and his political ally Mwai Kibaki in power and to avenge the killing of persons of his Kikuyu ethnic group. Trusting and temporarily handing power to his deputy William Ruto an ethnic Kalenjin to enable him deal with this case as an ordinary citizen of Kenya, solidifies the validity of this conclusion.
He has emphasized that the main reason for attending the status conference in his individual capacity is his belief and respect of the primacy of the constitution and sovereignty of Kenya over all other institutions. His decision therefore allows him to attend to the court process without violating the sovereignty of Kenya and the African Union Resolution asserting the immunity of sitting African leaders from criminal responsibility. This move must have taken the Prosecutor who opposed his application to appear by video-link by surprise. It has also made it hard for the Prosecutor to blame her inability to conduct proper investigation and present a strong case on him as she had done previously in his absence. The Prosecutor and the court should have evaluated the potential fallout in the decisions that took and the uncertain outcome of providing a politically savvy person the microphone and a voice when the world is paying attention.
On the diplomatic level, President Uhuru Kenyatta surely consulted widely with leaders of the government in Kenya, Kenyan Security Chiefs, Regional and Continental Leaders, the AU Commission Chairperson, US President, the UN Security Council and the Security Council prior to taking this unprecedented step. Kenya is a major ally in the combat against international terrorism. There is no gainsaying that this case had become a major distraction to international and regional efforts in the fight against terror. It is in the interest of the international community therefore that President Uhuru Kenyatta takes strong measures to clear his name and put this matter behind him. The steps he has taken will pay great dividends for him and Kenya. He comes long as a patriotic, selfless, humble but strong and confident leader who genuinely believes in the rule of law. There will be considerable pressure after this on his political opponents in Kenya to abandon their disrespectful disregard for the law and actions that may compromise national and sub-regional stability. Kenyans and the international community will hold them to the Uhuruto governing principle of respect for the due process and the primacy of the constitutional order.
It is obvious from the manner the Prosecutor has pursued this matter that she no longer intended to proceed with the case but did not want to take responsibility for the termination of the case. The Prosecutor shifted the responsibility first to the government of Kenya which she accused of not co-operating in providing evidence that may assist in making a determination whether the case was worth pursuing. She admitted to the Judges she did not have credible witnesses to sustain a conviction. Nevertheless, she did not apply to terminate the case, deferring ultimately to the trial judges to terminate or adjourn the case indefinitely. The decision by Uhuru to attend the status conference called in part to weigh the possibility of adjourning or terminating the case pre-empts attempts to blame the collapse of the case on his alleged use of his presidential power to deny victims justice.
Finally, the attendance of Uhuru will accentuate the tenuous relations between the ICC and the African Union. The African Union and critics of the court will point to this case to support their allegations that its poor performance record apart, the ICC’s agenda is inconsistent with its statutory mandate of providing complementary justice to victims and confronting impunity in member states. State co-operation that this status conference intends to address will become even difficult to attain in several African countries. In the result, whatever decision the court may take in this case will not improve the relations between the AU and African State Parties and the ICC.
It will not comprehensively resolve the lingering question on the application of the principle of complementarity that is the basis for ICC intervention in Situations in State Parties conflicts. This case is the first and only case in which the Prosecutor exercised proprio motu discretion in commencing an investigation and prosecution. The exercise of this jurisdiction in ongoing political conflicts like the case at bar is now called to question.
As in many parts of the world, African leaders have immunity, how does the appearance at the Hague and subsequent judicial developments there affect the immunity that Uhuru Kenyatta has?
Uhuru Kenyatta is not appearing before the ICC as a Head of State. He is appearing in his personal capacity. However the debate on sovereign immunity will continue.
The Statute of the ICC clearly does not recognized immunity for Heads of State or Governments. This is a departure from customary international law that recognizes the immunity of Heads of State from criminal prosecution while in office. The International Court of Justice has taken the position of customary international law and emphasized this in the case of the Foreign Minister of the Democratic Republic of Congo who was arrested in Belgium under an international warrant of arrest. The Special Court for Sierra Leone in the case of Prosecutor V Chief Hinga Norman and two others declined to issue a subpoena compelling President Tejan Kabbah to testify before the Court citing customary international law.
The ICC will not point to this matter to lay down the jurisprudence which could be cited as a precedent on the submission of Heads of State to the jurisdiction of the court. This case will not address or even lay down the jurisprudence on sovereign immunity of heads of state and governments from Prosecution before the court. Uhuru Kenyatta has denied the court that possibility. If anything, he had postponed a decision on that indefinitely. Customary international law on this subject is the dominant position applicable in international relations, and a majority of national and international courts and tribunals. By asserting sovereign immunity, African leaders are not creating an exception that is unknown to the law.
The criticism of the assertion of sovereign immunity by African leaders is based on the fact that it contradicts their commitment to combat impunity affirmed by the AU Constitutive Act. The immunity claimed by them is relevant only when they are in office. In the case at bar, the application of the Prosecutor for an indefinite adjournment of the case until President Uhuru Kenyatta leaves office if granted tacitly grants immunity to him until he leaves office. The result will be exactly what the AU unsuccessfully sought before the Security Council with opposition from the Prosecutor. It will be a tacit endorsement of the AU position by other means.
The power of deferral by which the Security Council on which Non-State Parties could join in deferring a situation for twelve months renewable indefinitely could be construed as an avenue to grant tacit immunity from Prosecution at the ICC. The result is the same. This in a way undermines the allegations of support of impunity made against the AU position.
About the ICC itself, why was it created and how does it actually work, how did a court based out of the continent become so involved with issues affecting Africa?
The need for an international criminal court to combat international criminality and impunity was first submitted by the Russian delegate at the First World Peace Conference in 1898. One of the major commitments of the civilized world after the Second World was a pledge of “Never again” should a holocaust occur on our watch. The International Military Trials established by the allies to try the perpetrators of mass crimes was again suggested by Russia. America and other allies did not favour due process for these criminals. The Nuremberg and Tokyo trials inspired the believe in an international rule of law to confront impunity and the crimes that shock the conscience of humanity.
The wars in the former Yugoslavia and Rwanda where ethnic cleansing and the crime of genocide were perpetrated alerted the world to the failure to respect the pledge it made to humanity after the Second World War and renewed the debate on the creation of a universal court to confront international criminality and impunity. The UN Security Council established Ad Hoc Tribunals to deal with these situations under its Chapter 7 authority that empowers it to deal with threats to world peace and security.
On July 17, 1998, 120 countries voted for the establishment of an International Criminal Court to end impunity by punishing crimes of concern to the international community. Article one empowers the court to exercise jurisdiction over persons for the most serious crimes of international concern as referred to it in the Statute and shall be complementary to national criminal jurisdictions. The ICC can only intervene in situations that are referred to it by State Parties, the Security Council or on the initiative of the Prosecutor.
The exclusive focus of the Court on Africa has been criticized as inconsistent with the founding principles of the Rome Statute. Africa enthusiastically lobbied for the establishment of the court. Africa bored the hallmark of international criminality starting with the slave trade, the partition of Africa, imperialism, colonialism and neo- colonialism. For example, France which was humiliated by Germany during the Second World War waged a genocidal war in Cameroun and Algeria from 1948 the same year the Universal Declaration of Human Rights was proclaimed. Africa continued to be the victim of neo-colonial wars, the cold war and a depository for arms –for- minerals vampire neo-colonial economic policies.
The assertion in the preamble of the Rome Statute concerning the respect for the fundamental principles of equality, peace and security enshrined in the UN Charter was appealing to Africa. Africa saw the court as an institution that would affirm international principles of non-discrimination in all aspects. This has turn out not to be the case.
A majority of the world is not within the reach of the court because the most populated countries are not state parties. Geo-political and hegemonic interests have made it hard for the ICC to exercise its jurisdiction outside Africa. Even in situations in Africa that the ICC has intervened, many see the erstwhile colonial powers as driving forces behind the prosecutions which are often skewed in favour of victors in conflicts of a political nature. The Prosecutor justifies these selective prosecutions on her resolve to protect the interest of victims. However these prosecutorial policies have polarized communities in the situations she has intervened. In some of these situations she has afforded protection for victims on the side of the victors while those on the side of the vanquished are simply ignored. This is so far the case in Libya, Cote D’Ivoire and Central Africa Republic
Just a little clarification, what is the relationship between the court ad countries which are non-signatories of the Rome accords creating the court and if we may ask, where African countries compelled to sign the treaty or be part of the court?
The Rome Treaty binds only State Parties. The fundamental principle in treaty making is consent which is a fundamental element in the exercise of sovereignty. The African countries were not compelled to sign the treaty establishing the court. I have explained the motivations of African countries for signing the treaty. However, article 13 of the Statute of the court empowers the Security Council of the UN acting under Chapter VII of the UN Charter to refer the situation in any country, and this includes non-state parties, to the Prosecutor of the Court for investigation.
Little has been heard about other cases except the ones involving African Leaders Bashir, Gbagbo, Taylor,Ble Goude etc., what is your reaction to those who think that African Leaders are been targeted unfairly?
I have written extensively about the exclusive targeting of Africa and African leaders by the ICC. I have discussed this elsewhere in this interview. I have pointed out that the reasons that compelled Africa to sign the treaty establishing the court have not changed. However, more than a decade of existence and struggling when the Special Court for Sierra Leone that was established about the same time has successfully completed its mandate at a comparatively less expense requires that the ICC makes a critical self-evaluation and initiate profound reforms. Even courts that have succeeded have from time to time made critical self-examination and made adjustments to their policies for the purposes of efficiency. The ICC, in particular the Office of the Prosecutor, has not done so. The other organs of the court are functioning and doing well. However the Office of the Prosecutor is a blur on the Court and we should not make the mistake of tarring the entire institution with the same brush.
The Office of the Prosecutor and the Security Council should join those who hold this valid concern in ensuring that the court attains the universal reach that its statute confers on it. Even without leaving its Africa preserve or focus , if the ICC Office of the Prosecutor were conducting proper investigations, it would have targeted not only those who perpetrated crimes in Africa but those who supplied the weapons and arms with which the crimes were perpetrated. These weapons are supplied by angels of death controlling institutions in Western countries that are contributing over 63% of the ICC budget. The Prosecutor of the Special Court for Sierra Leone in justifying his Prosecution of Charles Taylor explained that although Charles Taylor never set foot in Sierra Leone during the conflict, he supplied the weapons with which the crimes were perpetrated. The ICC can learn from that case and its outcome.
We did follow the submission of Ble Goude of Ivory Coast and he literally ripped the ICC apart on issues of credibility and fairness considering the selective way the court has handled issues in Ivory Coast, as an Imminent International Lawyer, how do you see the ICC gaining more credibility with Africans?
It is difficult to judge the ICC as an institution from the performance of a single organ. There are three independent organs of the ICC, namely the President and Judges, the Registry and the Office of the Prosecutor. So far much of the criticism has been indistinctly made against the court concerned the Office of the Prosecutor and the prosecutorial and policies decisions made from that office. The other organs of the court are performing their statutory functions relatively well. The exercise of prosecutorial functions is complex. The Prosecutor cumulates her judicial functions with administrative functions. Harmonizing these roles may be intriguing and even complex. This is where I situate the problems of that office.
For the Prosecutor to proceed against President Laurent Gbagbo and Mr Goude Ble, she needed enormous resources to do so. For her to proceed against the camp of Sorro and President Allasane Ouatarra she needs enormous resources to do so. Some state parties may have an interest in committing enormous resources in encouraging a process which is selective, unfair and ultimately dents the image of the court. Mr. Goude a victim of that process was in order to have made that point on his own behalf and many other African victims of selective prosecutions.
Looking at what Uhuru did, he may have shunned the court the way the Sudanese Leader has been doing, but he not only decided to go to The Hague but addressed Parliament and left the country in the hands of his Vice President, do you see in this a plus for democracy in Africa?
I have stated in this interview that Uhuru acted appropriately. Uhuru will come out as an African star. In his address to parliament, he invoked the spirit of his own father, Jomo Kenyatta, that of Osagyefo Dr Kwame Nkrumah, Mwalimu Julius Nyerere and Albert Lithuli. He was making a compelling case of joining that exclusive caste of historic leaders who eternalized the liberating soul of Africa and are considered the keepers of the African conscience. He made a case for his re-election with an overwhelming majority in the next election. He now joins his friend and brother President Jakaya Kwikwete as one of the key drivers of the train of liberation and progress of an emerging new Africa.
From your perspective as a Pan Africanist and Lawyer versed with the ICC, what lessons should the continent draw from the Uhuru case and way forward on relations between Africa and the ICC?
There is already one remarkable outcome. Africa is beginning to have faith in its own institutions. Uhuru spoke about and cited the new constitution of Kenya which now has the ability to regulate the affairs of Kenya in ways which the ugly ghost of the past will never again rear its head. For Africa to validly assert the sovereignty of its states and the relevance of its regional and continental institutions these institutions must be functional and serve the public good. President Uhuru Kenyatta has just asserted the primacy of the sovereignty of Kenya and its over forty million people over his personal interest. He has asserted that power belongs to the people of Kenya and not to an individual no matter how powerful. He denied the ICC that honour.
African countries must ratify the protocol to the African Court on Human and peoples’ Rights and take practical steps to bringing ongoing efforts to give the court criminal jurisdiction over crimes perpetrated on the continent. The Malabo instruments of the court have a number of flaws but these can and should be corrected.
President Uhuru Kenyatta has launched the global debate on immunity of heads of state and the functional immunities of plenipotentiaries guaranteed by customary international law but outlawed by the statute of the ICC. This debate will not go away so soon. Meanwhile, the actions of Uhuru underline the impending need for new African leaders who in one action can change the course of events and history in ways unimagined.
* Chief Charles A.Taku is the Publisher of Contextual Foundations of International Criminal Jurisprudence.
Together with Co-counsel Beth Lyons, Chief Taku recently obtained an acquittal on Appeal for their client Major Francois-Xavier Nzuwonemeye, the former Commander of the Reconnaissance Battalion in the Former Rwandan Army in the so-called Military Two Trial at the UNICTR.
Chief Taku was lead counsel at the Special Court for Sierra Leone for Major Morris Kallon in the RUF case and for Mr Samuel Kargbo in the Contempt proceedings.
Chief Taku and Co-counsel Beth Lyons were counsel for Dr. David Matsanga at the ICC in Situation in the Republic of Kenya