{UAH} HAGUE TRIAL KEEPS KENYANS MESMERISED

Hague trial keeps Kenyans mesmerised

by Susan Linnee, September 17 2013, 05:35

 

People watch Deputy President William Ruto’s trial at the International Criminal Court on September 10 2013 in Eldoret, Kenya. Picture: GALLO IMAGES

NAIROBI — Few major crimes are prosecuted in Kenya. The assassinations and mysterious deaths of political figures tend to be old and cold cases. Those responsible for corruption or the political mayhem that led to dozens of pre-election deaths in 1991-92 and 1997 remain uncharged or walked free when judges threw their cases out for lack of evidence.

Yet hapless thieves who bang someone on the head while stealing a chicken are tried, convicted and sentenced to death in the blink of an eye, often before a single judge.

So it came as a shock that six prominent men were formally charged in 2011 with crimes against humanity by the International Criminal Court (ICC) in connection with the deaths of at least 1,100 of their fellow citizens and the forced displacement of 600,000 others nearly four years earlier, in the aftermath of the 2007 general election.

When their appearance before the court’s pretrial chamber in The Hague was televised live, Kenyan viewers were mesmerised. Unable or unwilling to establish a local tribunal to prosecute those deemed most responsible for organising and committing the violence, according to a commission headed by Judge Philip Waki, the government and parliament of Kenya acquiesced to turning over their names to the ICC. "Don’t be vague; it’s The Hague," became the mantra of those who opposed local trials, including Deputy President William Ruto, whose trial in the Dutch city opened last Tuesday. The reason stated was that Kenyan courts were not up to the task; the assumption was that it would take forever for the international court to bring anyone to trial.

Two years later, the cases against three of the six accused have been dropped due to lack of evidence; two of the three remaining defendants are Mr Ruto and President Uhuru Kenyatta, former rivals turned allies. Public support for the ICC and the trials has plummeted.

"Right now people are reacting; they were caught by surprise that the trials are actually taking place. They thought the cases would collapse, but now the day has come," said social commentator and columnist Clay Muganda. "There is a lot of noise. People keep calling the ICC a political court and blaming their political enemies and nongovernmental organisations for what they see as a political plot. People are reacting as though the court has already decided its verdict," he said. "What they don’t seem to understand is that these people have highly paid and skilled lawyers to argue their cases."

When Mr Ruto and Mr Kenyatta, whose trial is due to begin on November 12, campaigned for the March 4 general election, they insisted their cases represented "personal challenges", that they would face on their own.

But today their attorneys — and the African Union (AU) — claim that it is unfair of the court to make them attend the hearings when they have important matters of state to deal with.

"Since the elections, Kenyan foreign policy is becoming captive to the experiences of two men. What had been ‘personal challenges’ are now being construed as a Kenyan problem, and the AU — which is more and more a bunch of heads of state rather than a body representing the citizens of Africa — is playing along," said Godwin Murunga, deputy director of the African Leadership Centre in Nairobi.

Uganda, Tanzania, Burundi and Rwanda — Kenya’s four East African Community partners — and Eritrea — have asked the ICC to exempt Mr Ruto from obligatory attendance so he can perform his constitutional duties; the ICC’s chief prosecutor, Fatou Bensouda, is strongly opposed, arguing that the court should treat all defendants equally.

From their opening statements, the attorneys for Mr Ruto and broadcaster Joshua Sang appear to be angling for early acquittals, arguing that their clients are upstanding, God-fearing citizens and the prosecution’s case is a shambles".

"There is a rotten underbelly of this case that the prosecutor has swallowed hook, line and sinker, indifferent to the truth, and all too eager to latch on to any version, any account, any story that somehow ticks the boxes," declared Mr Ruto’s attorney, Karim Khan, a veteran lawyer at international tribunals.

But neither defence attorney has so far made much of an attempt to counter the specific allegations in the indictments.

Ms Bensouda will try to prove that well before the 1997 general elections, Mr Ruto was already deeply involved in establishing a group of influential men of his Kalenjin community to carry out what amounted to ethnic cleansing in the Rift Valley in western Kenya.

From the start, assembling credible witnesses has been a problem for the prosecution, which only began its own in-country investigations nearly two years after the events.

Ms Bensouda has repeatedly warned of witness-tampering through both bribery and intimidation and has seen her line-up dwindle from more than 40 witnesses to about 22.

In fact, last Wednesday the trials were adjourned until Tuesday as she was unable to call her first witness because the three ahead of witness 536 — who was not in The Hague last week but is expected to appear on Tuesday — had dropped out, citing family concerns. among other things.

Coincidentally, as the clamour rose to "bring the trials back home", among politicians in the ruling Jubilee coalition and a fair number from the opposition Cord movement, the new Independent Policing Oversight Authority released its Baseline Survey on Policing Standards and Gaps in Kenya last Thursday.

"The quality of investigations at police stations is very poor. The impact of professional misconduct is very high," the report began before stating that whether an investigation is even opened depends on the status of the complainant or victim, adding that 62% of robberies reported to police never proceed beyond the station.

Police are in charge of all criminal investigations in Kenya, although there are plans on the table to involve the office of the public prosecutor.

"Overall 64% of the felony cases reviewed never met the minimum evidentiary threshold to charge a person with an offence. This threshold is much lower than the beyond reasonable doubt," the report said.

What has become lost in the drama surrounding the fact that the trials have actually begun, Mr Murunga said, is that "we have forgotten that indeed acts of violence occurred.

"The process has been politicised to such an extent as to make sure that the core of the problem is not expressed."

           Thé Mulindwas Communication Group
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