Makau Mutua
11 July 2009
opinion
Nairobi — Mr Kofi Annan has dropped a bombshell on Kenya by handing over the Waki Envelope to Mr Luis Moreno Ocampo, the Prosecutor of the International Criminal Court at The Hague.
This is the most dramatic development since the National Accord that ended last year's post-election violence by yoking Mr Raila Odinga and Mr Mwai Kibaki as co-leaders in the coalition government.
That's why I have decided to do an open letter to the suspects in the Waki Envelope - who remain anonymous to me - because the guillotine of justice is about to fall on them.
You will agree with me, dear suspects, that the legal noose just got tighter around your necks. Although you oppose accountability of any kind for the heinous crimes committed last year, you must now admit that your options have dwindled considerably.
Some of you thought - mistakenly - that the ICC was a joke. I know that you think that all judicial processes are impotent because you have been able to blunt the tools of justice in Kenya.
But I need to warn you that the road to impunity ends now. What is about to happen is a methodical and relentless pursuit of justice for the victims of post-election violence by the ICC.
Allow me to walk you through what is most likely to be your fate.
By the way, I noticed that the ICC has prominently displayed on its website a statement on the receipt by Mr Moreno Ocampo of the Waki Envelope from Mr Annan.
The message is clear - the ICC is determined to bring you to justice. But, as you know, the ICC is a court of last resort when the state is unable or unwilling to carry out genuine prosecutions.
According to the statute of the ICC, the "unwillingness" of the state to carry out genuine investigations and prosecutions may arise in three situations - sham national proceedings to shield certain individuals; unjustified delay in commencing legal proceedings; and impartial proceedings.
This means in plain English that the local tribunal that's being contemplated can neither be a whitewash nor a witch hunt. It must satisfy international standards for a fair and genuine court.
The most important of these safeguards are due process protections for suspects, the protection of witnesses, effective prosecutions, and the impartiality, independence, and competence of the judges and the court.
I know that most of you are desperate to kill a local tribunal because you believe it could be used to "fix" you or gain a momentum of its own and actually become a genuine court. That's why you would rather not take chances with a local tribunal.
I hear you, dear suspects, but you should have thought about the consequences of your actions when you authored the post-election violence last year. Let me disabuse you of some delusions.
The proposed amendments to the tribunal bill which would let you stay in office free of arrest even after you have been indicted and absolve you of criminal responsibility for the offences of your subordinates would not meet international standards.
How can witnesses be protected from you if you are free to move about with the privileges of your office? You could intimidate them, buy their silence, or simply eliminate them.
The principle of respondeat superior is an iron-clad legal doctrine that requires that the master answer for the crimes of the servant. No deviation from this rule is permissible.
So my advice to you is simple - do not support a local tribunal that the ICC will not recognise. Either agree to an effective local tribunal or take your chances at the ICC. This sounds like your goose is cooked either way.
The recent government delegation to see Mr Annan and Mr Moreno Ocampo obviously wanted to buy more time in the hope that this vexing matter "will go away".
Let me assure you that nothing of the sort is going to happen. Mr Annan has staked his legacy on cleaning up Kenya. Mr Moreno Ocampo has a zeal for justice that is unmatched. Prepare for the worst.
You should know, dear suspects, that the Prosecutor has a lot of latitude once he has chosen to go after a target. Just look at President Omar al-Bashir of Sudan.
Although he is given to boisterous rhetoric, Mr Bashir is a man on the run. The countries that he can visit without being bundled to The Hague have dwindled. He will never be a free man so long as he has an arrest warrant out for him. Since none of you are heads of state, your options are even less appealing.
I suspect that sooner than later, Mr Moreno Ocampo will conclude that Kenya is unable or unwilling to prosecute you in a genuine tribunal. He will then put you in the crosshairs of the ICC.
I am almost certain that the investigations that he has conducted thus far indicate that crimes against humanity, and perhaps genocide, were committed. There is little doubt that the evidence in his possession supports this conclusion.
You must have noticed that Mr Annan gave him not just the "sealed envelope" but also "supporting materials previously entrusted" to Mr Annan by the Waki Commission. But Mr Moreno Ocampo is not the final word on whether an indictment and arrest warrant are issued. It is the court - the judges - that has the power to issue a warrant of arrest when "reasonable grounds" exist to show that the suspect committed the crime.
If you believe you are innocent - and that must remain the presumption until proved guilty - don't be afraid to face the ICC. Go there and clear your name.
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission.
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