Deferral vs Excusal from Trial: Justice Chile Eboe-Osuji Has His Say

After a long break, I am back with a short post on the unfolding Kenyan ICC cases.

As we await the ICC's Appeal's Chamber's decision in relation to whether DP William Ruto will be allowed to skip most of his trial, I have read with interest the Trial Chamber's decision to allow President Uhuru Kenyatta to be absent from most of his trial. I am not convinced that the majority decision of the Trial Chamber, as was the case in DP Ruto's excusal decision, sits on firm legal grounding. In my view, justice Chile Osuji reads the politics right though. I read Justice Eboe-Osuji's separate concurring decision as a not-so-coded political message to his colleagues, the prosecutor and the UN Security Council. For the first two ICC actors, he seems to be saying: lets play ball to save the ICC (if AU's threats and the current poisoned environment are to be taken seriously, which he appears to do). Justice Eboe-Osuji presents excusal of the President from attending trial as a clear, and desirable alternative to deferral under Art 16 by UNSC. He sends a message to the UNSC hoping that it will act 'sensibly'. In this regard, he worries about the impact of deferral on the rights of victims noting at para 46 that:

'It is one thing to suggest that no injustice will be necessarily occasioned if Mr Kenyatta's case is deferred pursuant to Article 16 in order to allow room for the ongoing trial of Mr Ruto to proceed with greater speed and ease; it is quite another matter to accept that Mr Kenyatta's trial may not proceed for another five years—possibly ten—when the events in question occurred five years ago.'

It para 41, he reminds that events took place in 2007-2008. He then states, in unambiguous language, apparently not in favour of deferral as follows:

'To hold off proceedings during the term of office of the accused would mean a delay of 10 years at least before the trial begins. It is not necessary also to consider that the accused is entitled to run for a second term of another five years,^^ thus holding out the prospect of delaying the proceedings for 15 years. The delay of 10 years alone is hardly justifiable as reasonable. No victim should have to wait for that long before a trial begins, when it could have begun earlier. Memory does fade. Witnesses do die or become infirm. Evidence does deteriorate.'

With legal problems that excusal has, the stakes could not be higher, especially given that in my view, the deferral request that has reportedly been made by the Kenyan government to the UNSC stands (if it is) on very thin and exhausted legal legs indeed. Interesting times ahead. Post Friday 25 Oct scenarios are many, but that is for another day! One thing is clear though: Friday's decision could decide whether Fatou Bensouda appeals the Uhuru decision, which is substantially the same as the Ruto decision that she appealed. The only difference is that one is President, and the other is not. Will that matter?

Truth Commission Report Challenged in Court Over Mandatory Apology by President

In the wake of an apology and offer of compensation by the British government over colonial era atrocities committed in Kenya, two individuals one Njenga Mwangi and James Mwangi Meru are challenging the report of the Truth Justice and Reconciliation Commission over the recommendation for the sitting President to offer an apology to victims of gross human rights violations attributable to the Kenyan state over the last 50 years of independence.

Although I am yet to read the suit papers, this is a very curious petition, to say the least.

The petitioners want the High Court to stop the Minister in Charge of Justice from tabling the report in 3 days as required by the law establishing the Truth Commission (TJR Act of 2008). The Act provided that the report must be tabled in Parliament for debate 21 days following its publication. This is one of the safeguards built into the Act to ensure that the report of the TJRC does not meet the fate of reports of other commissions: failure to implement.

Read initial media report here. More reports and analysis to follow.

Kenyan Truth Commission publishes report

The report of the Kenyan truth Commission can be accessed here

A New Battlefront for the ICC? Presidents Kenyatta and Museveni Speak

After a long break from blogging, I am back.

It is fitting that I return with a post to kick of a discussion about the future of the ICC cases in Kenya, following the election and inauguration of Hon Uhuru Kenyatta and Hon William Ruto. As the region and the world re-adjusts to the election of Hon Uhuru Kenyatta as Kenya's 4th President, many are speculating what will happen now, given that President Uhuru Kenyatta and his Deputy William Ruto are facing trial at the ICC on charges of crimes against humanity linked to the 2007-2008 post election violence. Their trials begin on 9th July and 28 May respectively.

In his inauguration speech on 9 April 2013, President Kenyatta does not mention the ICC specifically but leaves no doubt that his sharp and unambiguous remarks on Kenya's international obligations and treaties address the ICC question. There are nuggets there that point to how his government is likely deal with and engage with the ICC issue. While affirming that his government will abide by Kenya's international obligations, he states that he expects that relations will be conducted on the basis of mutual respect and reciprocity. Here are his relevant remarks:

To the Nations of Africa and The African Union – we assure you that in Kenya, you will continue to have a partner and an ally. If we stand together in solidarity I am confident that we will find the strength to thrive and innovate solutions that work for us. Of course, we join you in continuing to insist on relating with all nations as equals - not juniors. As partners, not subordinates. In our history as nations, we have seen some of the most ardent promoters of ideals of national sovereignty and democracy sometimes fail to live by the principles they espouse, but let us remember that their failure does not justify ours.

To the nations of the world – we acknowledge that in this age of globalization, all of us are interdependent. Our economies are interconnected as indeed are our people. I pledge to continue cultivating the relationships we have had with our traditional partners and I say to all developing and developed nations who desire a deeper and more mutually beneficial relationship with Kenya: we are ready for partnerships, we are open for business and we invite you to invest in our country. I also want to remind the International Community that for the last fifty years, Kenya has been one of the most engaged members and one of the most prolific co-authors of international treaties and instruments. I assure you again that under my leadership, Kenya will strive to uphold our international obligations, so long as these are founded on the well-established principles of mutual respect and reciprocity.

Central to our continued contribution to the international community, will be the understanding that the world is made up of many countries, cultures, political experiences and world-views. We must remember that no one country or group of countries should have control or monopoly on international institutions or the interpretation of international treaties. While each state has a right to its own view, it must respect the fact that it holds just one view amongst many in the community of nations.

On the ICC, it is President Museveni of Uganda, speaking on behalf of invited regional leaders, who stole the show with controversial comments. In his remarks, which he says are his personal views (rather than those of regional bodies he represented), he expresses his disappointment in the ICC. He thanks Kenyan voters 'rejecting the blackmail of the ICC and those who seek to abuse this institution for their own agenda', noting that while he supported ICC at the start, he no longer does, partly because, he contends, it has become a foreign policy tool of some nations who use it to impose their will on others.

Here are his remarks:

This is my own opinion now. Before I was speaking on behalf of the people of East Africa, the COMESA regional trade group and ICGLR...this is my opinion. Furthermore, I want to salute the Kenyan voters on one other issue – the rejection of the blackmail by the International Criminal Court (ICC) and those who seek to abuse this institution for their own agenda. I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution. They are now using it to install leaders of their choice in Africa and eliminate the ones they do not like. What happened here in 2007 was regrettable and must be condemned. A legalistic process, especially an external one, however, cannot address those events. Events of this nature first and most importantly, need an ideological solution by discerning why they happened. Why did inter community violence occur? Was it for genuine or false reasons? Even if you assume they were genuine reasons as a hypothetical argument, why should villagers attack one another? Would the villagers have been responsible for whatever mistakes that would have occurred? Instead of a thorough and thoughtful process, we have individuals engaged in legal gymnastics!

In Uganda’s case, between 1966 and 1986, we lost about 800,000 persons killed by the leaders who were in charge of the country. How did we handle that sad history? Have you ever heard us asking ICC or the UN to come and help us deal with that sad chapter of our history? We only referred Joseph Kony of LRA to ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves. Equally, Kenyan actors are the ones best qualified to sit and delve into their history in order to discover the ideological stimuli the Kenyan society needs. I, therefore, use this opportunity to salute the Kenyan voters again, rejecting that blackmail and upholding the sovereignty of the Kenyan people. The people of Kenya extended hospitality to Ugandans when they had to run out of their country because of criminal rule in Uganda. I thank the people of Kenya and their leaders for this.

What do you think?

AU Maintains Stance on Al Bashir, Apparently Threatens Malawi

An interesting read on the Al Bashir and ICC issue. See here

AU v ICC: ICC Prosecutor Fatou Bensouda Fires First Salvo

In a previous post written soon after Ms Fatou Bensouda's election as the ICC's new prosecutor, I noted that she assumes office with a heavy burden on her shoulders. I suggested that this burden consists of balancing a number of often competing objectives: cultivating waning support for the ICC in Africa by presenting the Office of the Prosecutor in a less abrasive way; remaining focused on her job while navigating a mined geopolitical terrain and; pushing forward current situations and cases while reorienting the direction ICC in order to truly internationalize its operations.

I argued that while her election was rightly celebrated in Africa, those who expect her to be soft on Africa or to make drastic changes would be disappointed. I noted that while it is accurate that she got the job partly because there was a need to keep AU members in the fold, she confronts challenges of a structural nature that she will not be able to change. Equally, I suggested that she could be compelled to act tough on Africa precisely because she would like to avoid criticism that she was going easy on Africa (because she is African). In this regarded, I noted that:

There is no doubt the AU will watch her every move, and I will not be surprised if some demands are made on her in the Al Bashir matter. She may have no choice but to rebuff these overtures. Her burden clearly is do her job in a way that does not open her to criticism globally for being ‘soft’ on Africa, merely because she is African. My suspicion is that it is precisely for this reason that she could be firmer than Ocampo, although in a more diplomatic and accommodating way.

My words are turning out to be prescient. In a recent speech that has been analyzed in an interesting post by Alana Tiemessen on Justiceinconcflict Blog, Ms Bensouda has fired the first salvo. Her comments suggest - as I speculated in my earlier post - that it would not only be business as usual (a la Ocampo), but she would actually be tougher on African states than her predecessor. Interesting times ahead. The ceasefire could have been breached. The honeymoon is over.

Is Ocampo Taking Sides in Cote d'Ivoire?

Louis Moreno-Ocampo, the outgoing Prosecutor of the ICC, has apparently sent a letter to Guillaume Soro congratulating him for his election as the Speaker of the National Assembly in Cote d'Ivoire. Mr Soro is the immediate former Prime Minister, an ally of President Ouattara, and (former) leader of Forces Nouvelles (FN), an armed group that once controlled the North of the Country. FN were part of the coalition of armed forces that removed Laurent Gbagbo from power. Reports have linked FN, under the leadership of Soro, to serious crimes committed in the recent conflict that the ICC should at least investigate.

Kevin Jon Heller of Opinio Juris analyses this, and other previous missteps by Ocampo., Read HERE.

Does this gesture indicate that the Office of the Prosecutor has taken sides, in ways that would suggest bias against Gbagbo's side? Is victors justice at work in Cote d'Ivoire?