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President Uhuru Kenyatta’s Trial Can Now Go On

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In my column this weekend President Uhuru Kenyatta’s Trial Can Now Begin I note how despite having not achieved what the President wanted, namely, deferring, altogether terminating the cases or referring them back home for a local solution, the outcome reached at the conclusion of these efforts have made it possible for the president to avail himself for trial as this can now be done via video conference as opposed to having him hauled to the Hague and be physically present for the trial, which doesn’t sit well with many, including this writer, given presidents are not ordinarily hauled to courts and we certainly don’t want ours to be the first one.

Excerpts:

After mounting a spirited campaign to defer the ICC cases for the second time that did not yield the outcome sought, it now appears President Uhuru Kenyatta would have to settle for being tried via video link, if the ICC so approves as it should and likely will, instead of him being physically present at trial in The Hague.

This is welcome relief for all sides mainly because it allows the trial to take place without subjecting the president to the humiliation and awkwardness of being the first sitting president to be physically hauled into an ICC courtroom to face criminal charges that many believe don’t belong there to begin with.

Uhuru would have no doubt peferred that the cases be deferred or terminated altogether but, everything considered, going forward with a trial under these terms is desirable for several other reasons.

There are those who are saying that Uhuru should nonetheless reject this compromise but that will be a huge mistake because in both local and international politics, overplaying one’s hand is always politically costly with a dear price to pay.

The compromise is good and for this, all the efforts in the second round of deferral diplomacy have, in the end, yielded not exactly the outcome the president wanted, but one everyone, including himself can live and work with knowing in all cases where give and take is necessary, nobody gets everything they want.

Most importantly, we have likely avoided a bullet headed our direction had the president not been accommodated as now has so let’s hope the trials now quietly conclude and we close this dark chapter of our history even as we open a new one full of promise, peace and prosperity.

 
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Posted by on November 30, 2013 in Politics

 

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Why Kenya Is Determined To Stop ICC Cases

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In my column this week Why Kenya Is Determined To Stop ICC Cases, I offer my theory as to why the president and his team wants the case against him deferred, referred or altogether terminated.

Excerpt:

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

By abstaining, the US and other seven members of the Security Council who are also signatories of the Rome Statute, sent a clear message: We hear you Kenya; we sympathize with you but in balancing the needs of the post-election violence victims, we have to see you doing more before we can throw our weight behind your request, not necessarily for a deferral, but other ways to bring these cases to an end to everyone’s satisfaction in the name of national peace and reconciliation.

Meanwhile, the UK is pushing for a compromise to have the ICC amend its rules and make it possible for the President to appear via video. While allowing this is a win for the President, it may not be enough.

Put another way, even though this will be good for the President, it will not array the President’s concerns that appear to be at the core of this dogged determination to terminate or refer the cases back home for a local solution, and that’s a penchant for some to have the President nailed at the ICC simply for being Uhuru Kenyatta and for no other reason.

This is not an unfounded fear or concern for the former OTP himself, Luis Moreno Ocampo is on record as having said he wanted these Kenyan cases to be an example of how the ICC can bite, having failed to do so in the last 10 years of existence save for one or two major cases.

No one would want to be a guinea pig for a prosecutor bent on inflicting pain simply as an example for others. One can therefore understand why the President would go to all lengths to make sure that doesn’t happen.

In other words, ICC is no longer about finding justice for the victims as many wrongly assume and believe; rather the process is now about whether an ICC faced with prosecuting cases that don’t belong there to begin with can do so and render a verdict that can be deemed all around fair and just, everything considered.

It cannot and thus the reason it’s preferable to terminate or refer the cases back home for a local solution where at least some justice can be achieved for the victims as opposed to none at all at the ICC.

By abstaining, the US and other seven members of the Security Council who are also signatories of the Rome Statute, sent a clear message: We hear you Kenya; we sympathize with you but in balancing the needs of the post election violence victims, we have to see you doing more before we can throw our weight behind your request, not necessarily for a deferral, but other ways to bring these cases to an end to everyone’s satisfaction in the name of national peace and reconciliation. – See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

– See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

– See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

 
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Posted by on November 23, 2013 in Law, Politics

 

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Termination or Deferral of ICC Cases Is Not Impunity

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In my Star column this week ICC Termination Is Not Impunity, I make the case why this is so.

Excerpts:

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

Accordingly, it’s a big deal to have a president of any country hauled before the ICC other than in circumstances where a majority of the world would see it as justified.

There’s no justification for hauling Uhuru Kenyatta, a sitting president to stand trial for charges he is likely not to be convicted on. And even if he were, every indication is such a conviction could not survive an appeal therefore rendering the whole process a waste of time while at the same time belittling our sovereignty.

Put another way, had the situation been, hypothetically speaking, that Bensouda was handed an envelope containing Uhuru and Ruto’s names as suspects for having committed crimes against humanity after they were sworn in office, a prosecutor balancing the need to seek justice for the victims and the desire not to make things worse would have politely declined to prosecute the cases.

This is precisely what one can rightly assume would have happened had former president Mwai Kibaki’s name been in the envelope handed to Kofi Annan.

This balancing takes place all the time in countries that observe and respect the rule of law. But one can’t call it impunity because it’s a practice actually sanctioned under the law therefore it can’t be impunity.

On the other hand, a prosecutor doing the same balancing but merely wishes to make one an example as the OTP declared in this case would have proceeded to prosecute and try the cases knowing fully well there won’t be any convictions but plenty of an appearance of having fought a good fight for justice.

The latter happened and we can say the OTP can be given an “A” for effort but it’s now not worth risking plunging the country into further uncertainty and even turmoil to make a point that has already been made.

We can now take care of our own from here knowing the rest of the world is watching unlike before PEV.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Put another way, had the situation been, hypothetically speaking, that Bensouda was handed an envelope containing Uhuru and Ruto’s names as suspects for having committed crimes against humanity after they were sworn in office, a prosecutor balancing the need to seek justice for the victims and the desire not to make things worse would have politely declined to prosecute the cases.

This is precisely what one can rightly assume would have happened had former president Mwai Kibaki’s name been in the envelope handed to Kofi Annan.

This balancing takes place all the time in countries that observe and respect the rule of law. But one can’t call it impunity because it’s a practice actually sanctioned under the law therefore it can’t be impunity.

On the other hand, a prosecutor doing the same balancing but merely wishes to make one an example as the OTP declared in this case would have proceeded to prosecute and try the cases knowing fully well there won’t be any convictions but plenty of an appearance of having fought a good fight for justice.

 The latter happened and we can say the OTP can be given an “A” for effort but it’s now not worth risking plunging the country into further uncertainty and even turmoil to make a point that has already been made.

 We can now take care of our own from here knowing the rest of the world is watching unlike before PEV.

 
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Posted by on November 16, 2013 in Law, Politics

 

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Why Is Kenya Doggedly Pursuing ICC Deferral?

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Former president Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred.

These efforts were led by now former vice president Kalonzo Musyoka and as we know, the efforts failed.

That was Round I.

Round II got underway a few months ago this time flagged off by President Uhuru Kenyatta but headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat before assuming the portfolio unlike Kalonzo who mostly learned the intricacies of the trade on the job as minister for foreign affairs, save for a stint as a participant in the Sudan peace process.

With her background, and in particular Amina having worked at the UN Security Council as Legal Advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately–or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have not been successful on a very interesting UNSC vote: 7 members voted in the affirmative, 8, including the US, abstained.

I mention the US by name because if Kenya or any country seeking a deferral were to succeed, they must have the US on their side.

France and Britain will always follow the US lead and vote accordingly; Russia and China, the other two permanent members of the council with veto power will usually go along unless it’s something that directly or indirectly threatens their strategic and business interests.

The rest of the 15 member states of the UNSC will usually follow whichever country they have closer strategic ties with among the permanent members.

One needs the support of 9 members of the 15 UNSC members to have a resolution passed but only if no member with veto power votes no.

With the US having always taken a very hostile stance against anything favoring the Ocampo Six and and now Bensouda 3, it was inevitable even our fine and accomplished Amina could not pull this one to the win column but the potential was and still remains there; well some aspect of it as I noted in my Star column this week.

Why then, even against these odds, does Kenya continue to pursue the deferral and/or termination of these cases?

I have my theories and think I know to near certainty but let me keep those to myself for now as I hear what others have to say.

I will say by way of hinting it can’t be for naught neither is it an exercise in futility nor one being naively pursued.

In my column this weekend, I’ll address part of this question and provide a complete analysis in a future column.

 
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Posted by on November 15, 2013 in Law, Politics

 

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Options Beyond Denial of ICC Deferral

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In my Star column this weekend Options Beyond Denial of ICC Deferral, I postulate on what other options Kenya has if she were to spare having her president paraded and tried at the Hague and becoming the first ever sitting president and likely the last ever tried for charges it’s clear they’ll never be convicted.

 
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Posted by on November 9, 2013 in Politics

 

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Justice for Poll Violence Lies In Kenya

uhuruto_airport

In my Star column this weekend Justice For Poll Violence Lies In Kenya, I continue to make the case why the ICC cases should be terminated and/or brought back home for a local solution

Excepts:

According to the most recently published statistics, at least 3,000 Kenyans die annually in road accidents. 1,300 Kenyans were killed on the roads in the first five months of this year.

On the other hand, not including statistics for this year, there have been more than 11,272 Kenyans murdered in the country since the 2007 post-election violence. The number of people killed in those horrible days was roughly the same as those killed in road accidents just the first five months of this year alone.

Had the government pursued and prosecuted those who committed the PEV crimes when they occurred upon completion of investigations, we would not have been talking about crimes against humanity but about ordinary crimes, including murder.

The PEV crimes became “crimes against humanity” only because the government was unable to set up a mechanism by which those responsible for commission of the crimes would have been tried and herein lies the problem with the ICC process.

To be sure, the crude manner and barbaric nature of how some of these crimes were committed deserve all the condemnation possible and those who committed them must surely be found and prosecuted. But at the same time, it’s important to step back and evaluate at what cost? It’s by now widely accepted among many legal analysts who have examined these ICC cases that it’s highly unlikely any of the Kenyan suspects will be convicted.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

Those are not words of this writer but the words of world renowned American lawyer, jurist and prominent scholar Alan Dershowitz.

If neither Uhuru nor Ruto is going to be convicted in The Hague, it follows neither of them can be convicted anywhere else, including at home for crimes against humanity, which exist and can only be tried at the ICC.

It’s a classic catch-22 situation. But instead of remaining frozen where we are, where absolutely nothing is happening in the country but ICC talk and fixation, we ought to free ourselves by reaching a consensus. There’s no further need for the ICC. We should have these cases terminated and find a solution at home that comports with doling out of fair justice and bringing about closure for the victims.

At the minimum, a local solution can be fashioned to create a tribunal to try hundreds of other cases the government says it has tons of evidence the ICC prosecutor never bothered to look at. This would include, ostensibly, those of the actual killers and others who perpetuated these PEV crimes.

Separately, we can have a truth and justice tribunal similar to the post-apartheid Truth, Justice and Reconciliation Commission of South Africa, which can assess and award fair compensation for the victims and their families while creating an environment for Kenyans to put this tragic and dark days of our history behind and move on.

According to the most recently published statistics, at least 3,000 Kenyans die annually in road accidents. 1,300 Kenyans were killed on the roads in the first five months of this year.

On the other hand, not including statistics for this year, there have been more than 11,272 Kenyans murdered in the country since the 2007 post-election violence. The number of people killed in those horrible days was roughly the same as those killed in road accidents just the first five months of this year alone.

Had the government pursued and prosecuted those who committed the PEV crimes when they occurred upon completion of investigations, we would not have been talking about crimes against humanity but about ordinary crimes, including murder.

The PEV crimes became “crimes against humanity” only because the government was unable to set up a mechanism by which those responsible for commission of the crimes would have been tried and herein lies the problem with the ICC process.

– See more at: http://www.the-star.co.ke/news/article-142017/justice-poll-violence-lies-kenya#sthash.IOFAlIpb.dpuf

According to the most recently published statistics, at least 3,000 Kenyans die annually in road accidents. 1,300 Kenyans were killed on the roads in the first five months of this year.

On the other hand, not including statistics for this year, there have been more than 11,272 Kenyans murdered in the country since the 2007 post-election violence. The number of people killed in those horrible days was roughly the same as those killed in road accidents just the first five months of this year alone.

Had the government pursued and prosecuted those who committed the PEV crimes when they occurred upon completion of investigations, we would not have been talking about crimes against humanity but about ordinary crimes, including murder.

The PEV crimes became “crimes against humanity” only because the government was unable to set up a mechanism by which those responsible for commission of the crimes would have been tried and herein lies the problem with the ICC process.

– See more at: http://www.the-star.co.ke/news/article-142017/justice-poll-violence-lies-kenya#sthash.IOFAlIpb.dpu

 
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Posted by on November 2, 2013 in Law, Politics

 

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ICC Has Postpned Uhuru’s Trial; What Next?

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Uhuru Case Deferred To February 2014

Today’s decision by the International Criminal Court (ICC) to postpone President Uhuru Kenyatta’s trial to February 2014 in response to his application is good news for him but bad news for his deputy William Ruto.

Good news for Uhuru because it gives him more time to work on getting a deferral from the UN but bad news for Ruto because he could be nailed by then, even though I doubt he would be as I have always maintained.

One can never be absolutely be absolutely certain of the outcome a trial until it’s over, however.

There are many cases where there’s even unanimity among the experts that someone walks free following a trial but is nailed instead and vice versa.

As for Uhuru, this is all good news and let me posit here for the first time something that I think could happen and that’s the UN Security Council–or at least the more influential members of it on this (read the US) can use Uhuru’s application pending with the court and the basis for this postponement as a vehicle to get out of the difficult position it finds itself between going against the wishes of the entire AU or granting a deferral which could also be problematic as it would set a precedent Al Bashir could also exploit–a no-no even among those members who are sympathetic to Uhuru’s case for a deferral.

Under this scenario, the influential member could have the ICC basically directed to grant Uhuru’s application and have the case against him dismissed on that basis.

This will give Uhuru and AU what they want without opening a door for Al Bashir to get the same relief while ensuring continuing viability of the ICC, which is what the UN wants.

You can see that would leave Ruto hanging in the air–no pun intended.

Interesting days lie ahead, indeed.

 
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Posted by on October 31, 2013 in Law, Politics

 

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