Why would people lose faith in the ICC Process?

In Summary

• I was invited to Berlin to be part of a panel of experts about Presidents on Trial and the straining relations between the ICC and the African Union.
• This young nation elected Uhuru and Ruto. Whether we like it, agree or disagree, the numbers remain a fact. 
• Certainly, it is difficult and expensive to deal with witness protection. But the Court should have foreseen this.

Kenya ICC Trial

By LUIS FRANCESCHI
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It is 5:48 AM and I’m writing this piece from Berlin’s Tegel airport.

The reason is simple. Berlin’s airport is rather small and functional. It has no free internet access and just one small duty free shop. Berlin’s new airport, still under construction, should have been completed two years ago.

This delay made me happy: Nairobi is not the only city with airport dramas.

Berlin’s airport offers something which we rarely find nowadays: A confined space where there is nothing to do. One is left with no choice but to produce a laptop and write.

I was invited to Berlin to be part of a panel of experts about Presidents on Trial and the straining relations between the ICC and the African Union. This is a tough topic. A lot has been said, usually pregnant with emotions.

The ICC marriage with Africa is going through some very difficult moments. Kenya is at the epicentre of the crisis. During the panel I pointed out a few issues which I leave entirely open for a free, balanced and constructive discussion with the reader.

The panel moderator, a former German Minister for Justice, asked me an interesting question: What do young people in Kenya think about the President’s trial?

My answer was based on simple statistics. Kenya is a young nation. This young nation elected Uhuru and Ruto. Whether we like it, agree or disagree, the numbers remain a fact. They did so freely.

Young Kenyans knew there was an ICC process going on, and what is even more important, they voted Uhuruto probably “because” there was an ICC case going on.

I then decided to explain to the audience what, from a personal and legal perspective, are the main issues that are making a good number of people lose faith in the ICC process.

First, the Prosecutor's activism: When a case is under investigation the Prosecutor should avoid giving constant public declarations about the case. Prosecutors will always be under fire by the press.

The temptation is to fall into the trap, trying to convince others that you are doing a good job, when probably you are trying to fill a vacuum created by a poorly handled case.

Cases before the ICC are delicate and usually politically charged. This case is absolutely unique. Uhuru is not a dictator. He is a democratically elected President. This is the first time in history that a democratically elected President and his Deputy are being tried in an international court.

It is even puzzling to the international community the fact that Uhuruto are being tried for fighting each other before joining hands to be elected.

The second concern is brought about by the handling of witnesses and outsourcing of evidence gathering. Certainly, it is difficult and expensive to deal with witness protection.

But the Court should have foreseen this. More so in a case against a democratically elected President, whose main former rival is now his Deputy.

There have been strong allegations of coaching and manipulation. Simon Kipkolum claims he was jailed for a year in a Dutch prison, while Samuel Kimeli Kosgei alleges that his children were taken away from him after he failed to agree with the officials.

The two filed their affidavits at the High Court. Whatever the case, the evidence presented so far is weak and circumstantial.

This leads us to the third concern, which is mostly doctrinal. Judges should be very cautious in the application of legal principles to such delicate cases.

In the Lubanga Case, when considering the standard of proof, the prosecution argued that "the Chamber should not follow the jurisprudence of the ad hoc tribunals" when they decided that the relevant aggravating factors need to be established by the prosecution beyond reasonable doubt and they must be directly related to the offences that resulted in a conviction.

The prosecution submits that it is open to the Chamber to make findings as to the aggravating and mitigating factors on the basis of a "balance of probabilities". This statement by the Prosecutor is worrying.

It is even more worrying when some of the indictments have been decided by the Court on the basis of one or two witnesses. It worsened when Ocampo said that Kenya would be an example to show to the world that the Court works. This makes anyone wary of the consequences of appearing before the judges, whether guilty or innocent.

One of the panelists was Judge Hans-Peter Kaul, the German judge who dissented at the pre-trial stage. His argument was clear. He expressed his dissenting voice because the crimes committed during the postelection violence were grave crimes against the laws of Kenya, but they were not crimes against humanity.

He said: “I was and I remain convinced that these trials are a mistake.”

Uhuru’s trial has been deferred to February 2014. The Prosecutor has time to reflect and drop the case or keep going. Meanwhile, the President has a little time to reconsider his strategy.

Certainly, the Security Council is not the best bet. The solution may rather involve a huge negotiation effort to convince the majority of the Assembly of State Parties, due to meet soon, to convene a Review Conference, and incorporate a clause barring the proceeding with an investigation against a sitting democratically elected President.

One thing remains clear, when a marriage goes awry you can’t blame it all on one party.

Certainly, there are many things Kenya’s government will need to look at. But there are also issues over which the Office of the Prosecutor should self-examine for the sake of keeping the debate within the boundaries of reason. Both parties have four months to do so