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What Outcome Kenyans Should Expect Out of the International Criminal Court On PEV Cases

In the article below published by the Standard Online, I share the same views I expressed in my Open Letter to President, Pre-Trial Division, International Criminal Court at the Hague.

In ideal circumstances, ICC judges are called upon to dispassionately apply the law to the facts established by the record before them or those proven at trial.

Unfortunately, however, the cases against the Ocampo Six are not ideal for judges to do this, which means decisions the judges make, including whether to confirm the charges or not or outcome after trial, must be informed from not just the law and facts, but also drawing from other considerations.

The preamble to the Rome Statue under which the ICC operates states in part that “all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time.”

Justice for victims

What is equally true but not reflected in the preamble, and therefore not an integral part of ICC jurisprudence, is the fact that there are idiosyncratic factors peculiar to any given culture not present in any other and therefore must be taken into consideration in initiating and adjudicating cases before the ICC separate and apart from those that cross all cultures.

Tribalism, a vice and stable feature in Kenya is one such an example.

To be sure, tribalism exists in other countries, including Rwanda where the ICC has, and continues to play its role in seeking justice for the victims of genocide in that country that occurred back in 1994.

However, even though that violence was primarily between two tribes, the Hutus and Tutsis, the level of hatred between the two tribes and underlying reasons for the hatred and ultimately reasons for the genocide is different from the hate or underlying reasons for what happened in Kenya in early 2008 and the reason the Ocampo Six cases are at The Hague.

It is important to understand that distinction for no outcome can be rendered with respect to the Ocampo Six that would be deemed justice or otherwise accepted by all concerned, unless these underlying reasons are taken into consideration.

Rather than going into a detailed exposition to analyse and/or explain these underlying reasons, it is sufficient to say, and there is enough in the record to reach this conclusion, and that is, the dynamics that resulted in the post-election violence in Kenya. There was evidence the elections that took place in Kenya in 2007 were rigged and this created an environment where violence took place not to exact revenge for the perceived wrong-doers in the flawed elections, but to settle old scores primarily between the Kalenjin and Kikuyu.

Those scores, unfortunately, have everything to do with land and not the elections of 2007.

As long as the land issue is not addressed to the satisfaction of these two communities, no outcome other than the non-trial or acquittal of both Uhuru Kenyatta and William Ruto is going to be seen as fair or just in their respective communities.

THE LAND QUESTION

At the same time, the trial and conviction of either and acquittal of the other will be seen as unjust in the eyes of the community of the one convicted and, therefore, foment even more tribal tensions between these two communities and be worsened only by the joining in of the rest of the country’s communities likely to ally with one or the other as a matter of political and tribal necessity.

That especially depends on whether such acquittal or conviction occurs in the heat of the campaign period in the country later on this year.

This is obviously a dilemma that the ICC court must resolve in the national interest of Kenya and, given where things are today, that certainly must be committing the cases to trial, to at least get the story right as to what happened and either convict both of these individuals or acquit both.

STATUS QUO

Not confirming the charges against the two, namely, Uhuru and Ruto, or acquitting both will leave the matter in status quo until the communities themselves successfully tackle the issue with the help of the national government, led by the next president to be elected later this year.

Such an outcome would not change the fact that the very prosecution of these Ocampo Six has forever changed Kenya in that we are unlikely to see anything even remotely close to what happened in 2008 because Kenyans know we are on a path to ending impunity locally and internationally. ICC is there to ensure no one even attempts to engage in crimes against humanity, let alone genocide.

I have previously proposed that a mechanism be put in place to criminally try the same suspects at home for common crimes requiring less rigorous proof as does conviction under the Rome Statute (ICC) but also pass laws to allow for civil trial to hold those charged civilly responsible for their offenses, if proven under the generally less exacting civil code, in the event they are acquitted in their criminal cases for lack of evidence or other reasons, including unwillingness to convict or tempering with the process.

Peace, Unity and Let’s Put PEV Behind US

Omwenga

 
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Posted by on January 9, 2012 in Law, Politics

 

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Reconfirming My Position on the Ocampo Six And Why I Think All Six Walk, Or At Least 3 Do

The following is my response in other fora to two individuals who is mistaken that I have been inconsistent in my views on ICC and the Ocampo Six.

You are both operating on a false premise.

First, it does not mean one is right only if they stick to their original positions regardless of changed circumstances or availability of new information. Using that, namely, rigidity to original positions taken as a measure of consistency or right or wrong is wrong.

Second, if you read my legal analysis of the ICC case against Ruto in my blog “Who Is William Ruto” at http://omwenga.com I penned back in April, you’ll clearly see I conclude in that blog that Ruto will walk from the Hague. I also conclude Kosgey and Sang will equally walk because their defenses are closely related to Rutos.

I noted in that analysis that I did not analyze UK, Muthaura and Ali’s cases but I clearly hinted they, too, may walk on at least one technical defense I discuss in the blog.

I have also been very consistent in saying none of the Six will ever see the inside of jail in these cases.

You will note in the analysis, I left it open as to when Ruto, Kosgey and Sang (RKS) walk: before the confirmation, or after trial.

After the confirmation hearings for RKS, I blogged that their charges will be confirmed. This is because they did not attack the prosecutors case in a manner that would essentially result in dismissal of the cases against them.

In my blog yesterday, I allowed that one of the six may not have their charges confirmed and I can tell you now that’s Sang because I gleaned from the Ocampo interview that he bodged in the documentary presentation of Sang’s case.

That does not mean he is forever free, if he walks on this ground for he can be recharged with new evidence.

However, I maintain that all three walk after trial because of the defenses I discuss in my analysis.

The all three or each individually get nailed, of course, if they don’t mount the defense or others to overcome the charges.

It’s not unheard of or uncommon for defendants to be nailed for failure to raise a defense or effectively challenge a case and neither is it unheard of or uncommon for a prosecutor to loose a sure case for failure to effectively prosecute or simply by being overpowered by the defense or by simply fumbling a solid case.

These things happen very routinely and the Hague is no different.

Regarding UK, Muthaura and Ali (UMA)–no pun intended, the charges against all 3 will be confirmed.

As for the outcome at trial, I can’t really call it as authoritatively as I have the other three because I have not thoroughly analyzed their cases as I have the other.

I do see parallels in some of the defenses between the two groups of cases which can result in acquittal of UMA but that remains to be seen as to (a) they raise them and (b) how effectively.

Yesterday, I blogged as follows:

Ocampo is a good prosecutor but brilliance is not usually associated with prosecution; a prosecutor is either tough or not and that is measured by the number of convictions he or she exacts.

Those who think otherwise are mistaken; if you are looking for brilliance, go to a academia and private, not government practice.

That does not mean there are no brilliant prosecutors or brilliant lawyers in government service.

Ocampo should not have done the interview at all and if he had to, he should have done it in Spanish.

Conducting the interview in English he is not a master of made him come across as a bumbling buffoon which he  clearly is not.

He has already telegraphed what I have been saying all along and that is, let’s be prepared for some folks to walk and I think Ruto, Sang and Kosgey will walk, much less so the other two and even more less the other one.

It is not inconceivable that all but two would walk.

If this was a Kangaroo court, it will convict Ruto and UK and say, Case Closed.

This is not a Kangaroo court.

Given this record, you can clearly see I have been very consistent in my reasoning and views about this cases.

I have not changed my views like “Dutch weather” as my friend KM suggests.

Again, just so it’s clear, there is nothing wrong with changing views or analysis based on changed circumstances or new information.

Confirming something I left open regarding confirmation of the charges is not “changing like Dutch weather!”

I think you are mistaking the concept of changing one’s principles with changing viewpoints which are two different things: you can freely do the latter but not the former for doing the former is the proverbial being a wobbler–a no-no, especially in politics.

Ask Mitt Romney how he wishes this were not true.

Peace, Love and Unity

Omwenga

 
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Posted by on October 9, 2011 in Law, Politics

 

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Why Do People Hate Raila So Much; A Personal Story Involving A Friend Who No Longer Is Because of My Support For Raila

In response to news bit from a netter regarding Raila’s attending a wedding of the son of Henry Kosgey, the MP for Tinderet and Chairman of ODM and f ICC fame where Raila also met and was warmly welcomed by both players fro the Rift, I responded as follows, given the political implication of just that one event and what was said there by both Kosgey an Raila. I in the process of responding ended up writing this blog about a Raila hater friend.

My response and blog about my Raila hater friend:

I wonder how many of the Raila haters had upset stomachs or threw up when they saw that [PM attending the wedding and being warmly welcomed by Kosgey and Sally].

Talking about Raila haters, here is another true story: Just before the elections of 07, I had someone from Kenya I was helping in a business matter involving a business associate of mine in Thailand. I would usually meet this person at Inter-Continental whenever in Nairobi.

I knew from the first day we met that he hated Raila very well and would not hear of Raila being elected president even back then but I did not wish to have him know I was from the opposite side of his views so you can imagine how difficult talking about politics was whenever we met, especially when it came around talking about Raila, which I always tactically tried to stay away from as I much as I could but I could easily handle all other subjects (on the phone from here that was not an issue as the conversation will be short and strictly business).

In December, I took time off from here to be home for the elections so the individual invited and insisted that I visit him at his residence, something I generally avoid doing because of the short time I am usually home, sometimes 2 or 3 days so I prefer meeting at a convenient location downtown where I can kill many birds with one stone as far as time is concerned.

Be as it may, I one day go to my friend’s home at his invitation and as we were getting ready to chow, we see on his large tv pictures of Raila preparing to have a press conference. This was close to elections so I wanted to hear what Raila was about to say and asked my friend if he could turn up the volume, which he did.

As Raila started speaking, my friend told me he will never vote and nobody should ever vote for this [I am withholding the name my friend called Raila because it was the first time I heard someone call him that and don’t believe I have heard it since and believe me, I have heard about all of them–but I don’t wish to introduce the name here, in case nobody has heard it and starts hurling it around], anyway, the man says he will not vote for this _____and then tells me to look and see who Raila was surrounding himself with: “Arabs,!” referring to Salim Lone, who was appearing with Raila at the press conference.

I was taken aback with this outburst and there was more but did not show it and pretended I did not hear and asked my friend to turn the volume back low and we went on to have one of the longest conversation over the late lunch (but shortest in actual time) as I had to excuse myself to leave for another meeting.

As was the case all times when dealing with him, my friend always had one of his drivers handy to pick me up or take me anywhere I wanted; he even offered one time to have the driver take me to the village to see mom.

In other words, other than hating Raila, the relationship between my friend and I was superb in every respect.

Until after the elections when the man saw me in one of the newscasts in which I was seen right next to Raila at one of his many press conferences during the crisis.

I know the man saw me at any of those conferences for I never heard from him ever again.

He didn’t even care anymore about the business matter I was handling for him; he basically said, “%$@# you Railaist; you are just as a [that word] and I would have nothing to do with you two!”

I can imagine that and I would be right.

Oddly, this notwithstanding, I often think about this friend–he still is in my book, and really wish to one day meet up with him over a drink and try to understand why would someone hate another person that much. For all I know, Raila has done nothing at all to this person; or at least I assume so as he never mentioned any such thing in the times we transacted business unless he thinks otherwise and hates Raila for that that reason but even that, why basically extend that dislike or hate to me, someone otherwise we were good friends, by refusing to even take my calls during and after the crisis.

In fact, during the crisis, I tried to call a number of people I knew were and still are close to Kibaki but none would take my calls.

But even long after the crisis was over and we had a coalition government, this friend still refused to take my calls except one time he answered and growled that he was busy and would call me back but never did!

BTW, he is an older man so I sometimes wonder if his hatred does not go back to Jaramogi’s time. You just never know which angle these haters come from: some its personal, some it is tribalism, some it is being rich, some it is you name it but even I who was so avidly against Raila at one point more than a decade ago, I never hated him at all as a person for I knew and still know he is a compassionate, free spirited upright man.

I have not given up hope on my friend, however. Remember my credo, if there is tomorrow, there is hope.

Anyway, back to Raila and his meeting with Kosgey and Sally, I suspect there is more of this to come in the weeks and months ahead, culminating in ODM sweeping the country yet again in victory come election time.

I believe so because I sense there is more love than hate in the air for ODM as led by Raila.

In any case, this is my prayer this beautiful Sabbath Day and always.

Peace, Love and Unity.

 
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Posted by on June 5, 2011 in Uncategorized

 

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Who Is William Ruto Part V

Who Is William Ruto

Part V

Four years after the eruption of post-election violence in Kenya (“PEV”), and after more than 2 years of Kenya’s inability or unwillingness to prosecute the perpetrators of the violence, the International Criminal Court (“ICC”) has summoned six suspects named by its Chief Prosecutor, Luis Moreno Ocampo (“the Chief Prosecutor” or “Ocampo”) as the most responsible for the violence. Ruto is among the six or the “Ocampo Six,” as they are collectively referred to. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Hussein Ali, Henry Kosgey and Joshua Sang.

Efforts by Kibaki and his half of the government coalition to defer the ICC trial of the Ocampo Six having failed, the Six are headed to the Hague where Ruto, Kosgey and Sang are scheduled to be formally told today what it is they are being charged with. Their co-defendants will appear tomorrow for the same purpose. This is a formality with predictable outcome: the suspects will plead not guilty as charged, unless any of them confesses which will make an otherwise very boring day very exciting.

In this last series on Who Is William Ruto, I attempt to lay out what I believe his legal defense to be. As noted previously, I do this on principle and notwithstanding my criticism of the man which I will continue to provide when he is off the reservation. Now then, what is Ruto’s legal defense?[1]

As I noted in introducing this piece in Part IV, there is first the time honored defense mastered by humanity from approximately the age of 2 and onwards regardless of fact when faced with an accusation and that is simply, “I did not do it.” Given the success of this defense or lack thereof through the ages, however, especially when given reason to believe one has done what he or she is accused of as in this case where the ICC has reason to believe and has charged Ruto of committing crimes against humanity, then a more substantive and persuasive defense is necessary.

In sum, I see the following four defenses for Ruto (and by extension Kosgey and Sang) against the Charges he currently faces and outcome:

  1. The ICC has no jurisdiction. Fail
  2. The elements of the case not proven. Succeed.
  3. The Prosecutor’s evidence is not sufficient to establish “reason to believe” Ruto has committed these offenses: Succeed.
  4. Trial: Acquital

From the outset, I should note the final outcome of this case will be the same even if Ruto were to be tried in Kenya and thus my amazement why he joined Uhuru, Muthaura and Hussain (“UMH”) in fighting against going to the Hague.  On the other hand, it is more likely for UMH to be convicted at the Hague than at home for reasons I cannot get into now for the trio are not the subject of my analysis. Be as it may, I have already predicted acquittal for Ruto but let me elaborate.

By my count, Ruto has 3 basic defences and of these 3, one will fail but two will succeed, leading to his acquittal. The defense that will fail relates to the argument recently offered by lawyers Kibaki hired from outside the country to advise him after failing to secure a deferral of the cases and this is the jurisdictional argument, essentially arguing that the ICC does not have authority to entertain the case under the Rome Statute.

As I have argued elsewhere in my blog, this argument is doomed to fail for two reasons: First, the ICC can automatically exercise jurisdiction under Article 12 of the Statute over crimes committed on the territory of a State Party or by a national of a State Party such as the ones the Ocampo Six are charged with. In this case, Kenya, a State Party, actually referred these cases to ICC thereby subjecting itself to ICC jurisdiction under Article 13. These are more than enough reasons for ICC to satisfy itself it has jurisdiction but there is more that need not be explored here.

Second, on the question of admissibility of the Ocampo Six case which belies the question of jurisdiction, the ICC only looks to see if there is a credible ongoing investigation and or prosecution of any or all of the named suspects in Kenya. As of this writing, there is no such a thing going on therefore to challenge the ICC cases on this ground is indeed without basis as the circumstances stand today. Were Kibaki to agree and follow through with the conditions set forth elsewhere on this blog, including passing a law to try PEV suspects locally, then the ICC might entertain an application at this stage of the game under Article 17(1)(c) of the Statute but any other application is doomed to fail.

This then leaves Ruto with two technical defenses that ultimately he and the other two (Kosgey and Sang) will prevail on and these are the lack of “reason to believe” and failure to satisfy the definitional requirements of the elements necessary to secure a conviction under the Rome Statute.

In order to secure a conviction against Ruto, the Prosecutor must, among other things prove the existence of “a widespread” or “systematic” attack against a civilian population. However, Article 7(2) Rome Statute requires that the Prosecutor must not only prove that there were multiple acts directed against a civilian population in a systemic and widespread manner but also that these acts were pursuant to or in furtherance of a “State” or “organizational” policy to commit those acts.

There is no evidence and I don’t believe the Prosecutor can show that Ruto acted in furtherance of a “State” or “organizational policy.” Ruto was not part of the government during the PEV period so he could not have been acting in furtherance of a State policy. He campaigned and belongs to the Orange Democratic Party (ODM) but the party had nothing to do with PEV and certainly it did not have a policy of engaging in systemic commission of crimes against humanity therefore the “organizational policy” prong of the element of an ICC crime also fails.  The failure to satisfy the requirements of the “State” or “organizational” element alone could have the entire case against Ruto thrown out.[2] This is not to say Ruto could not be tried and found guilty of commission of the same crimes he is accused of if this element is not satisfied but that has to be in Kenya not at the ICC and perhaps this is why the Ocampo Six initially preferred the Hague but changed their minds later–I doubt though as there seems not to have been a coherent legal strategy about this but there is plenty of evidence political calculations played the upper hand.[3]

The reason the Rome Statute imposes a state or organizational policy element in ICC crimes against humanity is because doing otherwise will simply transform domestic crimes into international crimes on the basis of the quantitative outcome of the harm and the manner in which it is performed without wars. In other words, you can’t just look and say there were widespread and systemic crimes in the country therefore these must be crimes against humanity; you must also have to show that these were done at the direction of an authoritative person in the government, the government itself or at the direction of an organization which had commission of these crimes as a policy. None of this apply in Ruto’s case and thus my conclusion he walks on this ground alone.

The question, however, remains what kind of state or organizational involvement would be required, if Ocampo were to succeed in showing that Ruto was acting pursuant to some organizational policy. Gazetting such a policy would the obvious case for the government in this case but you know that will never happen, ditto for an organization to go to the presses with their policy to commit widespread and systemic crimes against civilians. At best, only inferential evidence can be offered in this case but only as against UMH and not Ruto.

On the other hand, a reverse corollary question to be asked and answered is would an act constitute a crime against humanity under the Rome Statute, if a state or organization turned a blind eye to acts committed against a civilian population? According to the Introduction to the Elements of Crimes Against Humanity, it is understood that “policy to commit such an attack requires that the state or organization actively promote or encourage such an attack against a civilian population. A footnote to this part of the text explains the following:

“A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of government or organizational action[4].” This level of analysis provides yet another reason Ruto walks free as it eliminates ODM being dragged into this in any way because the party had no such policy otherwise it would have been implicated from the beginning.[5] Having no provable organizational policy, the inquiry as to this question is at an end in favor of Ruto.

Ruto may also walk on failure to satisfy another element of an ICC crime and that is the “discriminatory” element albeit on a lesser degree.  Opinions on this issue have varied over the years, but according to many, some form of discriminatory intent is inherent in the notion of crimes against humanity[6]. Although the Prosecutor’s success or failure in satisfying this element is a toss-up in my view, his task may be made even more difficult given yet another related element and that is intent.

In conformity with Article 7, the Elements of crime against humanity also require that the perpetrator knew that the conduct was part of, or intended to be part of, a “widespread or systematic” attack. This discriminatory intent requirement which describes the context in which the conduct must take place, applies to all enumerated acts constituting crimes against humanity under Article 7. Article 30 of the Rome Statute meanwhile specifically states that, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge

According to the Introduction to the Elements of crimes against humanity cited above, however, proof is not required for determining that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the state or organization. The mental element is satisfied if the perpetrator intended to further such a widespread or systematic attack. It is very unlikely in my view that the Prosecutor will be able to show this going by what has been reported. Ruto can simply argue, if he is courageous enough to, that all he ever intended to do was to repel attacks from the Mungiki thugs who had been sent to kill his people.

Ruto also walks even if a full trial was to be held on these same grounds (substantively by challenging the Prosecutors evidence or lack thereof, or successfully rebutting same) and on grounds, dispositively, I believe, that horrendous as it was, what happened in Kenya in early 2008 does not rise to the level of “crimes against humanity.” This is because the Rome Statute does not bring within its jurisdiction crimes that are unrelated to the widespread or systematic attack against a civilian population. The acts must be related to the attack and the perpetrator must have been aware that the crime was so related. Thus, Ruto, and the Ocampo Six for that matter can argue, successfully in my view, that what happened in early 2008 was acts of hooliganism and common criminality to be handled by the Kenyan courts. I am fairly convinced this closing argument at the end of trial will prevail if it has not before then as a technical defense.

For these reasons, it is my submission that Ruto walks at the Hague. Notwithstanding his going astray, ODM should support him for his trial at the Hague and hopefully in return for the good gesture, Ruto can go back to the drawing board and see where he miscalculated, make good with Raila and we all shall be happy again as a party which is good news for the country.


[1] Ruto’s defense in my view is substantially the same as Kosgey and Sang’s defense so when I say Ruto I include Kosgey and Sang in this context.

[2] Ruto may alternatively argue that even assuming, arguendo, that organizational policy is established, the acts were not “widespread” or “systemic” rather they were isolated and regional. In other words, in order to be “widespread” or “systemic,” the acts had to be committed throughout the county pursuant to this organizational policy. (Please don’t send me emails accusing me of how could I say this; after all, we are talking about thousands of Kenyans who lost lives. I know that fully but am advancing a legal defense the way I see Ruto presenting it)..

[3] Ruto has a solid defense nonetheless even if he were to be tried in Kenya and not at the Hague.

[4] Draft finalized text of the Elements of Crime, UN Doc. PCNICC/200/INF/3/Add.2(2000), p9 and n.6\

[5] Interestingly, Uhuru, Muthaura and Ali may walk on this ground as well.

[6] See generally, O Swaak-Goldman, “Crimes Against Humanity,” in G.K. McDonald and O Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, Vol. 1, The Hague/Boston/London: Kulwer Law International 2000, pp. 143-168.

 
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Posted by on April 7, 2011 in Siasa

 

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