The International Criminal Court (ICC) had handled the cases of the Ocampo Six perfectly. That’s until it floated the possibility of holding confirmation hearings in Kenya. That’s a terrible idea — in fact and in law.
I know the court sits at a great remove from Kenya. But that’s why it must listen to those of us who know the country well before committing a major — and regrettable — blunder. I know the court’s intentions are noble, but sometimes nobility can be costly.
I submit that the court must abandon this idea, or risk a catastrophe. So far, the court has struck great blows against impunity. But trying the Ocampo Six in Kenya could light a deadly match, and take us back in a flash.
Why does the ICC want to try the Ocampo Six in Kenya? First, the court seems to believe that real justice — and the fight against impunity — must be “organic”. Simply put, impunity is banished where the rule of law becomes part of the people’s zeitgeist.
Translation — the “people” need to see ethnic kingpins and alleged perpetrators of crimes against humanity held accountable right before their eyes. It believes that justice in a far away land could fail to impress the locals. The “people” need to “touch” and “feel” the texture of justice.
They need to breathe in its civilising smell. The victims need to see the “fall and humiliation” of the high and mighty before the lords of justice.
Secondly, the court seems to believe in the power of the “demonstration effect”.
The ICC may want to “school” the Kenya legal system.
Although in Dr Willy Mutunga we have an impeccable Chief Justice, Rome wasn’t built in a day.
The man and his few reformist judges have their work cut out for them. The ICC knows this. It knows that the Kenyan legal system — the judiciary, the organs of prosecution, and the police — are corrupt through and through.
That’s why the ICC believes that holding hearings in Kenya would “demonstrate” how the legal system ought to work.
This “demonstration effect” would “educate” our hopelessly sick and cannibalistic legal system. Infuse integrity and decency where they don’t exist.
What do I think of this logic? My answer is nuanced because I really don’t like international tribunals. But don’t take that statement out of context — I mean to say that I hope they aren’t necessary. International tribunals exist because of the collapse of domestic will and ability to do justice.
They come in when states fail to do their job.
They are an indictment of a society’s inability for self government.
They are a necessary, but imperfect evil. But they cannot — ever — replace domestic courts.
That’s because they aren’t “organic” or homegrown. The ICC thinks that it can narrow this “credibility gap” by temporarily “transplanting” itself to Kenya. This is noble and well-intentioned, but totally unrealistic.
I oppose holding hearings in Kenya for several reasons. First, the Ocampo Two — Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto — have demonstrated a proclivity for “tribalising” the ICC process.
I must absolve the Ocampo Four — Tinderet MP Henry Kosgey, Head of the Civil Service Francis Muthaura, former Police Commissioner Hussein Ali, and radio journalist Joshua arap Sang — of this.
The Ocampo Four have been “model suspects”. It’s not the Ocampo Four who worry me — it’s the Ocampo Two.
The Ocampo Two may mobilise their ethnic supporters and tribal demagogues to orchestrate violence. This is one way to disrupt the trials and demonstrate their “dangerousness” to Kenya. Imagine a “mzungu court” trying Kenyans in Kenya.
Secondly, the trials shouldn’t be held in Kenya because the government is incapable of providing basic security to the court, its officers, and
Let’s suppose the Ocampo suspects were to instigate a demonstration against the court. Imagine the demo turns violent.
I don’t believe the government can professionally deal with such chaos.
I don’t even want to think of the image of police shooting demonstrators outside the court, or the police being overwhelmed while the judges and court officers flee for their dear lives.
The trials could be a tinderbox — a powder keg — that could re-ignite a worse inferno than the one seen in 2008. Why risk such a dire outcome for hypothetical benefits?
I can imagine a violent clash before the court by supporters of the Ocampo Six, on one hand, and the victims and their supporters, on the other. How would the government deal with such a nightmare? Can the government effectively ban such a demo?
My answer is in the negative.
Massive crowds could turn out on both sides and, given the high emotions of the ICC cases, I don’t see how the situation could be contained.
Violence would be a certainty with unpredictable, but gruesome consequences.
I know this is a doomsday scenario — but that’s what we should prepare for. That’s why it would be unreasonable for the ICC to put Kenya in such a horrific predicament.
Finally, I think witnesses would be most at risk in a hearing held in Kenya.
They would be intimidated out of their wits. We know that in the past witnesses have disappeared or been eliminated.
Does the ICC want to risk that? Amnesty International supports the hearings in Kenya.
I am afraid Amnesty needs to take a step back, and stop putting ideology and principle over reality and facts on the ground.
Kenya is a fragile state that cannot take such stress. Try the Ocampo Six at The Hague — let’s stop romanticising justice.
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.