From the moment former Prosecutor of the International Criminal Court (ICC) Luis Moreno Ocampo announced the names of six Kenyans he said bore the highest responsibility for the 2007/8 post-election violence, politics took over.
ICC was characterised as a Western entity that was being used to effect regime change in Kenya. As lead defence lawyer for Deputy President William Ruto in the crimes against humanity cases, Karim Khan, perpetuated that characterisation of external interference.
“They thought that Kenyans were so weak that they would say that choices have consequences and they would get a different set of leaders that were amenable to outside interests. Kenyans were not naïve. They made the right decision and the court process fortunately, after a lot of work by the defence teams, showed by the independent review by experienced judges… that the evidence was distinguished by gaping holes, contradictions, fallacies and lies,” he said in one of the many interviews he granted to the Kenyan media.
Among the many challenges The Hague court faces is its characterisation as a political tool.
On Wednesday, Mr Khan will be sworn in as the third ICC prosecutor to succeed Gambian Fatou Bensouda who has served her single term of nine years.
“A swearing-in ceremony for the new prosecutor of the International Criminal Court, Mr Karim Asad Ahmad Khan QC, will be held on Wednesday June 16 2021, at 11am in Courtroom I at the Seat of the Court in The Hague, The Netherlands. Mr Khan will officially assume the post of the ICC Prosecutor,” ICC said in a statement.
In four days, the shoe will be on the other foot as Mr Khan, who had suggested that the court was being used in Kenya to effect regime change, will be the one defending the court against accusations of being a political tool.
According to Mr Ndung’u Wainaina, who heads the International Centre for Policy and Conflict (ICPC), the Kenyan cases saw a lot of demonisation of the ICC and Mr Khan’s powerful client, Dr Ruto, was involved.
“Now he has to be the face of the court and the diplomat to sustain the reputation rebuilding efforts started by his predecessor. How he goes about that is even more challenging to him,” says Mr Wainaina.
Besides, Mr Wainaina says, the civil society, which has been a major supporter of the court and traditionally a significant partner to the prosecutor, have already highlighted their misgivings about Mr Khan.
But lawyer Kimutai Bosek, who was representing Mr Sang in the ICC, says the claims that the British lawyer participated in any way in demonising the court have been taken out of context.
“He was not attacking the court itself. You must understand that as a defence lawyer you would not want to antagonise the court, but you are always put in a position that you have to criticise the prosecutor and the investigator. With the ICC, the two roles of investigation and prosecution are fused. Karim’s major onslaught against the prosecution was in terms of investigation, not the institution,” says Mr Bosek.
Mr Khan was elected in February in the first election ever held to pick Ms Bensouda’s successor. His closest challenger, Fergal Gaynor, was also involved in the Kenyan ICC cases as the victims’ lawyer in the case against President Uhuru Kenyatta.
Besides having to defend the court and his office against political characterisation, Mr Khan takes office facing many potential conflict-of-interest situations having been involved in many cases at the ICC as a defence counsel. Some of these cases, including the Kenyan cases, are still active before the court.
Mr Khan had represented former Head of Public Service Francis Muthaura until his case was terminated. He then joined Dr Ruto’s team until the case collapsed in April 2016, partly on allegations of witness tampering. Kenyan lawyer Paul Gicheru, who was among the three Kenyans indicted by the ICC for witness tampering, surrendered to the ICC on November 22 and is waiting for the confirmation of charges decision.
Mr Khan has also represented suspects in the Darfur situation.
Before his election in February, 22 civil society organisations engaged in ICC-related work wrote to the Assembly of States Parties (ASP), which is the political gathering of all members of the Rome Statute that establishes the court, opposing Mr Khan’s candidature. Among the issues they raised was the potential conflict of interest, saying he would have to “recuse himself from this (Mr Gicheru’s) important case as well as any future trial proceedings in the Ruto and Sang case”.
Conflict of interest
Both Mr Khan and Ms Bensouda did not respond when we reached out to them. But in a statement by the Office of the Prosecutor (OTP) on March 19 after Ms Bensouda and Mr Khan met, one of the issues that arose was the potential for conflict of interest, with the outgoing prosecutor saying that the Rome Statute would take care of any such situations.
“The framers of the Rome Statute foresaw the possibility of potential conflicts of interest and provided for them in article 42(7) of the Statute … Mr Khan will apply this provision scrupulously whenever the circumstances require. In his correspondence with me, Mr Khan has informed me that he will recuse himself from any case, where a conflict of interest may be perceived to arise from his former representation of suspects or accused persons,” Ms Bensouda said in the statement.
“He will have practical measures implemented to protect against any such risk, and the public can have complete confidence in the good faith and efficacy of this process, and Mr Khan’s unyielding commitment to his duties and responsibilities under the Rome Statute,” she added.
According to Mr Bosek, issues of potential conflict of interest have mostly been raised in respect of the Kenyan cases by “these prophets of doom who seem to entertain the notion that the Kenyan cases could be revived. My advice to them is that those cases died and let them not expect them to be revived.”
Mr Khan was a late entrant to the race to succeed Ms Bensouda, and he only joined in after Kenya led the protest over the shortlisting. The initial shortlist had Fergal Gaynor and Ghanaian Morris Anyah, both of whom had represented Kenyan victims at the pre-trial phase of the case against President Kenyatta, Mr Muthaura and former commissioner of police Hussein Ali. Other shortlisted candidates were Susan Okalany (Uganda) and Richard Roy (Canada).
In the Kenya government’s interpretation of the shortlist, Mr Gaynor was going to be the next prosecutor for the simple reason that the first prosecutor came from South America and the incumbent comes from Africa. Therefore chances for those regions producing another prosecutor to succeed was naught. By elimination, the Canadian candidate was also a non-starter since the current ICC deputy prosecutor is from Canada. So it could only be Mr Gaynor.
“The current shortlist does not meet this expectation and appears skewed in favour of a particular candidate,” Kenya’s Ambassador to the Netherlands Lawrence Lenayapa wrote to the court on July 13, 2020.
By the time the shortlist was being reopened, the four candidates who had been shortlisted had even been interviewed. Following the reopening of the shortlist, five more candidates were added to the shortlist, including Mr Khan.