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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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An Open Letter to President, Pre-Trial Division, International Criminal Court, The Hague

Via Email

The Honorable Judge Sylvia Steiner

President, Pre-Trial Division

International Criminal Court

The Hague, Netherlands

Re: Kenya PEV Cases

Dear Hon. Judge Sylvia Steiner:

I am a Kenyan currently residing in the United States and write to you in hopes I can share my thoughts with you, which I also believe are the views of many other Kenyans both in the Diaspora and at home.

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

The case now pending before you involving the six suspects from Kenya, otherwise commonly referred to in Kenya as the “Ocampo Six,” does not present itself as one where you can dispassionately apply the law to the facts established by the record before you or at trial, which means decisions you make about the cases must be informed from not just the law and facts but also drawing from other considerations before rendering decisions such as to whether to allow the case to proceed to trial, and if so, what the outcome at trial must be.

The preamble to the Rome Statue under which this Court lives and breathes, 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.”

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 this honorable court 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 this Court has and continues to play a key 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 before you.

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 analyze and/or explain these underlying reasons, it is sufficient to say, and I believe there is enough in the record to reach this conclusion, that the dynamics that resulted in the post-election violence in Kenya (PEV) are three dimensional:

  • There was evidence the elections that took place in Kenya in 2007 were rigged and the winner at the presidential level was not sworn in as president but the incumbent who lost, was.
  • The incumbent president and more so his close people utilizing state machinery ensured that his being sworn as president despite the glaring evidence he had not won the elections ruled the day.[1]
  • This created an environment where violence took place not to exact revenge for the perceived wrong-doers in executing the flawed elections, but to settle old scores primarily between the Kalenjin and Kikuyus and those scores have everything to do with land and not the elections of 2007, even though politics is at the core of why they arose in the first place and this goes back to the dawn of our country’s independence in 1964.

I note above that the Ocampo Six is not your typical case to dispassionately apply the law to known or proven facts.

The reason I say this is because of the third dimension above and that is, 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 while the trial or 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 animosity as between these two communities made worse only by the chipping 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, especially if such acquittal or conviction occurs in the heat of the campaign period for the elections to be held in the country later on this year.

This is obviously a dilemma that you 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 and either convict both of these individuals or acquit both.

The rest of the suspects are basically irrelevant as you can send them all to the gallows and you will not hear even as blip from anyone other than perhaps their relatives and friends.

Uhuru Kenyatta and William Ruto are the face of ICC; with their fate, so goes their communities but the same cannot be said about the rest of the suspects many don’t even know who they are.

Not confirming the charges against the two, namely, Kenyatta 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 all 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.

In this vein, the new government working with Parliament must find a way to compensate PEV victims, including solving the problem of the IDPs and one way I have recommended is to have these suspects tried locally and if no convictions are forthcoming, Parliament should pass laws to allow for civil penalties for those found to have been responsible for PEV.

One would think the very suspects would be readily willing to pay civil penalties under those laws to put an end to this sad chapter in our country’s history than go to jail.

In other words, letting everyone go at this point would not be worse than convicting some but not all, especially as between Uhuru and Ruto.

I therefore hope you take all of this into consideration as you deliberate and decide the way forward in the proceedings against the Ocampo Six and may God grant you the wisdom to do the right thing.

Sincerely,

Samuel N. Omwenga, Esq.,

Silver Spring, United States

Cc: Sir Adrian Fulford, President

Trial Division, ICC


[1] The official then in charge of conducting the elections said after PEV and maintains to this day he doesn’t know who won the elections as president. Other observers say it’s not clear who won but contemporaneous evidence clearly points to someone other than the incumbent winning and some even say in a landslide.

 
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Posted by on January 7, 2012 in Law, Politics

 

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The Year 2012 Is Upon Us; Let’s Be Civil As We Debate and May The Best Candidate for President Win

The year 2012 is upon us and as I blogged the other day, This Is It For Raila, UK and Ruto, much of what we have been analyzing, hypothesizing, guess-working, imagining, making up, or otherwise wishing for which will no doubt continue unabated to the day we deep our fingers in that ink at any of the polling stations we’ll vote for those who will to validate same, will be proven right or wrong that day.

Between now and then, we must all pledge to operate and debate in the spirit of brotherhood and sisterhood.

I realize I may be preaching to the choir for many of you but it’s important that we preach the message of peace and unity even as we vigorously debate the issues of the day.

I am always saddened when I see clear incidences of hate and tribalism gushing out of every fora I know on these Internets (George Bush’s word) and hope and pray that God gives those cursed with the disease to break free of it this year that promises to bring so much change and hope for our country.

It is the only way we can proceed and go into greater heights of peace and prosperity.

I know ICC looms over everyone’s head for one reason or another as we approach yet again another election circle but, if there is one thing I know and have been preaching loudly, it is we cannot and shall not allow ourselves to see even a remote repeat of 2007.

I am separately penning a blog I had hoped to during the holidays to further expound on the view I hold those looking for ICC to bring closure to PEV are mistaken and instead, I believe closure must come from within us all regardless of the ICC outcome.

Kenya is blessed with all kinds of resources, including some of the best brains any country can have.

Yet, to see the kind of triviality and primitive reasoning one witnesses between and among her educated lot, especially these Internets (GB’s word) which is supposed to be the bastion of intellectualism, creativity and discourse, is inexcusable and should quite frankly be made a capital offense for what it does is no different than killing a person in as far as its success smothers or suffocates intellectual debate to death.

The good thing is, there are fewer of those who would otherwise not engage in productive debate.

I have seen many good debaters and contributors in the various Kenyan for a I am happy to read their contributions and actually enjoy doing so.

Even those I don’t agree with, I am always willing to read their posts to get their points of view.

I need not describe the lot none of us can possibly enjoy or be happy reading and even though we individually no doubt have people we cannot stand to read what they write, we collectively must agree we have those who sully the debate with their ad hominem attacks and other irrelevancies that must be shunned accordingly.

I know its wishful thinking to think we can clean these fora of insults or even less so on the ground but there are extremes we cannot and must not tolerate.  As I always say, there are more ways than one to skin a cat; if you think someone is an idiot or saying idiotic things, show us why or how than calling them such.

Ditto for disagreeing with others.

Let’s be tolerant of opposing views and above all, let’s not hate or project hate on others merely because we disagree with positions they have taken on any issue or who they support for president.

For those who read my blogs, you’ll know I have blogged of something I witnessed at Wilson Airport sometime last year when a number of presidential candidates converged at the Airport from their various rallies.

Having insulted each all day long, there they were laughing away at everything when their supporters are up here on the Internets (GB’s word) looking for ways to take each out not for a drink, but to kill!

We can do better and that is simply focusing on issues that matter and let’s debate them–and yes, including these politicians themselves but to accuse people of being “idol worshipers” merely because they strongly support their candidate is thinking small.

I’ll rather one offers reasons pro and con about any leader and let’s discuss those as we enlighten and educate each other about these leaders and may the best one win in the end.

I also know and am fully aware bloggers such as yours truly are targets of hate and vitriol either projected to us by those who hate the man we support for president, or simply on account of who we are and how effective we are in what we do.

That’s fine.

As I have told my friends privately who worry about the abuses I take, I know what I am doing and don’t mind do so because it’s not simply for my supporting Raila but also because of my love for our beloved country.

Indeed, one reader made the following comment, which sums it all for me: ““For those of us in the [fora] from outside legal profession, we enjoy the day to day interpretation of the happenings through Sam’s legal mind. His fervent contribution in building Kenya as a nation through the writings can only come from one who loves greatly his country of birth. Not that I agree with him all the time, hell no. But, i must say i read all his postings. Bravo Sam for these- writings. Keep it up!” Ajus Cirilus, Kenya posted in Progressive Kenyans, (PK).

As I told Ajus on the thread he made that comment, this is what makes me burn the proverbial midnight oil and do what I do despite some of the nonsense and ad hominem attacks I have to deal with.

We all in one way or another must do what we can to make Kenya a better country and for me, this is just one way besides whatever else I have done in the past, or will do in the future.

Talking about “idol worshipers” and other choice labels for supporters of one famous candidate, I must refresh my blog giving new meaning to these words and expressions for 2012 only, Words That Have New Meaning In 2012 Only for I have seen a couple of new ones to add.

In sum, all am urging is, God has made it possible for us all to see this New Year 2012.

I believe it’s also going to be an historic year for our country because the president we elect and other leaders must take us in the direction we should have been from decades ago but, as Mulili said in that famous quote butchering the Queen’s Language in Betrayal in the City, “Better Never Than Late!”

He, of course, meant, “Better Late Than Never.”

That’s true in everything we have not individually done in the past; if it can be done, this is the year to do it; just do it!

We have never elected a president in an open and transparent manner, other than arguably in 2002 relative to past years.

The year 2012 is the year that must be upped 10 times over and may the new president have even half the goodwill and resolve by all Kenyans to rally behind him as we saw in that electrifying election year.

I know it will happen and with probably more euphoria but we each have a role to make it happen and that starts from engaging in civil discourse while being realistic and not being naive as to what change really means.

To do so, we must step back and look at what positions we are taking and answer the question how are those positions helpful in moving our country forward as one people and not as disjointed individuals or tribes.

I am confident if we answer that question, and pledge as I have urged above, we’ll be halfway there.

To be there completely, we must all at least pledge to keep the promises I urge in blog also published in the Standard Online.

Peace, Unity and May the Best Candidate Win In 2012

 
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Posted by on January 6, 2012 in 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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The ICC Decision To Appoint A Judge From Uganda To Preside Over the Kenya Government Appeal Is A Mistake

According to the story appearing now on the The Standard Online, the ICC has appointed a judge from Uganda to preside over the appeal lodged by the Kenya Government on the question of admissibility of Ocampo’s case against the Ocampo Six.

The decision is inappropriate and wrong.

While I support the ICC process against the Ocampo Six and am confident all of its judges are competent and quite capable of rendering sound judgment as any other, including this judge from Uganda, this decision is nonetheless bone headed because Uganda is too close to home they might as well have appointed a Kenyan judge to do the job; why not, the prejudices and suspicions from either side of the issue for impartiality or lack thereof would be there no matter the outcome of the ruling.

ICC should rethink and appoint someone from even other neighbors like Tanzania or Ethiopia, which have not been mentioned together with the disputed election results of 07 and the post-election violence that followed, as Uganda has.

I can see the government filing an appeal just on this basis alone, if the ruling goes against it, therefore further delaying the proceedings.

Somebody at the Hague surely must have thought about this before the decision was made.

Conversely, they probably did but do not mind the inevitable appeal and delay should the government lose.

I just can’t believe either one, especially given there are so many other judges they could have appointed from any of the many nations represented at the ICC.

Peace, Love and Unity

Samuel N. Omwenga, Esq.

 
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Posted by on June 8, 2011 in Law, Politics

 

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