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By Bernard Wainaina
CEO,Profarms Consultants®

ICC,The Hague fetish for African cases will be its undoing in the long run.

Its very credibility is being eroded as it continues to indulge in this obscene fetish.

I am one of those who believe an impartial mechanism of international justice is essential in today’s world.

Sure, the ICC has been utterly imperfect.

Its particular fetish for Africa in a world where gross inhumanity flourishes in every corner is more than a proven fact.

An impartial court would look without blinkers at atrocities wherever they are committed, be they in Afghanistan, or Iraq,or Syria, or Ukraine, or against Gaza.

That would correct the anomaly where a court like the ICC exclusively picks on African states.

Its latest target is the Central African Republic, with South Sudan most probably
next.

Criticism of the ICC’s partisanship should not be conflated as is sometimes the case to imply that all is well in Africa.

Grievous crimes against humanity were committed in Kenya in 2007/8 and are still being committed in DR Congo as well
as in Central Africa and South Sudan.

Yes, equally dreadful war crimes have been perpetrated in the Middle East by jihadists, government forces and foreign powers.

Similar atrocities are being committed in Ukraine by a mix of militias, government troops, rebel forces and powerfully armed intruders suspected to be from Russia.

The other day helpless Gaza was brutally demolished by the Jews.

Not a word about this non-African bloodletting has been heard from the ICC.

DIFFERENT JUDICIAL INSTRUMENT FOR WHITES

I am not naïve to imagine the ICC would have the nerve to indict an American for the systematic destruction over the years of Iraq and Afghanistan.

Nor do I expect any Russian to be indicted over Ukraine.

The ICC would overnight cease to exist if it tried this gamble.

Even the possibility of the judges(most likely the black judges and the black OTP) and the prosecutor being unceremoniously dispatched to an island prison like Guantanamo cannot be ruled out.

Which is precisely why I insist a different international judicial instrument needs to be explored.

The ICC, as presently set up, is an instrument of convenience for the Big Powers who wield vetoes on the UN Security Council to bludgeon weaker states to their will.

The US, Russia and China are not even signatories to the Rome treaty.

That leaves the court fishing for soft targets in
Africa.

MISSED OPPORTUNITY

This situation is simply untenable.

It is incomprehensible why the court deliberately avoided to indict anybody for war
crimes in Sri Lanka during the savage suppression of the Tamil insurgency in 2009.

The ICC missed a great opportunity to show it sees beyond Africa.

Sri Lanka is not Iraq or Ukraine where Big Powers are entangled and would move to block indictments.

The ICC is not talking the whole truth when it pleads it is wholly at the mercy of the UN Security Council in initiating indictments.

It can act when countries call upon it to do so, as was the case with Cote d’Ivoire regarding former president Laurent Gbagbo.

It can even launch investigations on its own initiative, as it apparently intends to do in Central Africa Republic.

In Kenya, we had the highly unusual situation where a black individual — a former UN secretary-general — was instrumental in bringing in the court.

A reformed court can take the direction of the International Court of Justice, which arbitrates sovereign disputes with admirable neutrality.

Remarkably, it doesn’t shy away from taking on the US and even ruling against it.

It did so during the Reagan administration when the US mined Nicaragua’s territorial
waters.

Of course, power being power, the Big Boys like the US,Russia and China can always ignore International Court of Justice rulings without fear of consequences.

But as with the old fable of the hyena and the heedless stone— “Even as you ignore me, I know you have heard me!” — a message delivered is better than nothing.

AFRICAN CASES USED AS PAWNS TO RAISE THE COURTS STAGNATING BUDGET

Discernibly, President Kenyatta seems to have become a high-priced pawn in a fierce budgetary battle the ICC prosecution
is hell-bent on winning.

The court has, tellingly, subpoenaed Kenyatta to appear before it at the same time as its influential Committee on Budget and Finance is scheduled to hold its all-important
meeting.

On September 5, the court’s Chief Prosecutor, Fatou Bensouda, publicly admitted that “as matters currently stand” she was not “in a position to proceed to trial on October 7” as
scheduled.

It was a foregone conclusion that Ms Bensouda would drop the charges against Kenyatta after March last year, when she
let go his co-accused and the first suspect in the case against the Kenyan Government, Francis Muthaura.

But the Black Gambian lawyer has refused to withdraw the charges against the Kenyan President.

‘FAILURE TO COOPERATE’

On September 30, Bensouda swayed the trial judges led by the Japanese national, Kuniko Ozaki, to order Kenyatta to appear in person during the status conference scheduled for
October 8.

After the court overruled his twin requests to have his lawyers represent him at the status conference or to postpone it to a later date, Kenyatta’s choices are stuck.

It is still a puzzle as to why the prosecution is clinging to what is, pretty much, a collapsed case.

Bensouda has given only one reason why Kenyatta’s trial should be kept in cold storage: the Kenya Government’s “continuing failure to cooperate fully with the court’s requests for assistance in this case”.

This claim is unfortunate, absurdly assuming that a government of a state party to the Rome Statue should serve as the prosecution’s investigation bureau!

But there is a more nuanced reason why the prosecutor is clinging to Kenyatta’s case and summoning him to the Hague.

She is using Kenyatta’s appearance before the court — as the first-ever Head of State to appear before the court while in office — to raise its profile and clout.

“They [ICC] want to use the President to bolster the profile of the court,” quips Senator Kipchumba Murkomen.

This is part of a larger scheme by the prosecution to win over state parties insisting on a zero-growth budget to endorse its high budget proposals for 2015 and beyond.

Not surprisingly, Kenyatta’s summons is timed to coincide with the annual meeting of the Committee on Budget and Finance from October 7-17, 2014 expected to decide on the
court’s 2015 budget.

NO-GROWTH BUDGET

On October 6, about the time Kenyatta is expected to be jetting in, the Embassy of Germany at the Hague will be hosting a meeting of state parties and members of the court’s Committee on Budget and Finance.

The court’s worst nightmare is a no-growth budget.

Last year, Canada broke consensus with the European Union to demand the retention of a “zero-growth” 2014 budget for the court.

Although it came on board after serious persuasion, Canada made it clear that it would oppose a further increase in the 2015 budget — stoking fears that other states might follow
suit.

Out of Kenya’s pivotal position as a regional hub of capitalism and the West’s key ally in the campaign against terrorism, the court deftly hewed a strategy of challenging the
no-growth budget policy.

Prior to March 2011, when the court indicted six prominent Kenyans in connection with the 2007-2008 post-election crisis, the court’s budget was almost at a standstill, stuck
between €101 million in 2009 to €103.6 million by 2011.

The ICC’s “big fish” strategy to create international publicity around the Kenyan cases to bolster its profile and budget has
paid off.

Its approved budget has shot meteorically to €122 million in 2014, some four million shy of the €126 million budget the court requested in July last year.

In September 2013, the court’s prompters applauded the start of the trial of Deputy President William Ruto as a chance to
increase its annual budget. Kenya has since become the court’s prize milk cow.

MOST EXPENSIVE CASES

The two Kenyan cases are the costliest ever for the ICC, budgeted at €6.9 million (Sh788 million) in 2013 — which works out to an average cost of €3.45 million (Sh394 million)
per case.

The court has planned to spend more than Sh3 billion on the Kenyan case over the next four years.

This makes Kenyan cases three times more expensive to prosecute than the cases in DRC that involve militia leader Thomas Lubanga.

But ICC supporters are already lobbying for more funds for 2015 “to give the court teeth”.

In her contribution to the budget proposal in July last year,Bensouda unveiled the court’s “new investigation strategy” to improve the court’s badly tainted prosecution record and
as a clever financial mobilisation gambit to increase the court’s budget by 70 pc (more 20 €million) by 2017.

Bensouda’s “new investigation strategy” may be too little too late.

Kenya is currently paying for the court’s international justice on the cheap.

BOUGHT WITNESSES

The prosecutor has responded to the court’s shoe-string budget by out-sourcing the on-the-ground investigations and procuring of witnesses to often partisan, inexperienced and
donor-funded civil society outfits and consulting agencies.

The results are dire.

In 2014, five of the cases, three of them
in Kenya, failed to come to trial because of lack of evidence.

Certainly, from this scenario, the court is unlikely to let Kenyatta go.

Even though the case against Kenyatta has never taken off — and the trial judges might tell the prosecutor to drop the charges — the court is waving it to bolster its profile, ward
off the threat of a zero-growth policy and put its budget on a steady rise and to also exhaust the Kes 3 billion earmaked for his case.

Clinging on to Kenyatta’s case may offer the court a temporary financial reprieve, but international justice will suffer a mortal blow as the court’s clout becomes diminished and its image irredeemably tainted.

ORDERS ON KENYATTA WILL PUT AFRICA’s SOVEREIGHNITY AT RISK

The future of the sovereign immunity of Africa’s sitting leaders is also in doubt after judges at the International Criminal Court ordered Kenya’s President Uhuru Kenyatta to appear in person to a status conference on the future of his case on October 8.

In Kenya, opinion is sharply divided on the impact of Kenyatta deciding to attend, or not pitch at all.

Efforts to that Kenyatta did not attend in person hit a dead end after the ICC rejected his request to be excused from appearing because he was having burning state duties
(attending Uganda’s Independence celebrations on 9 October and chairing the Northern Corridor Infrastructure Summit in
Kampala on that next day).

Compounding the problem the court ruling out appearance via video-link.

The alternative is to attend.

Failure to attend might give the ICC Prosecutor the excuse to issue arrest warrants against
Kenyatta and to declare Kenya a rogue state like Sudan.

Although Kenyatta has been to the ICC before, his appearance as president will raise the Court’s profile for hosting the first-ever sitting president.

But it will also cast doubts on the future of presidential immunity in Africa.

The possibility of Kenyatta being detained at the Hague — which would fundamentally restructure power and redefine sovereignty — is remote, the lingering fears are conceivably
behind the move by over 100 members of parliament and reportedly African heads of state to accompany the President Kenyatta.

The ICC orders have posed serious dilemmas arising from the African Union’s extra-ordinary summit on the International
Criminal Court (ICC) in October 2013, which declared that:“no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head
of State or Government or anybody acting or entitled to act in such capacity during their term of office.”

The AU sought “to safeguard the constitutional order, stability and, integrity” of African states, and called on Kenyan leadership not to appear before the court because “the trials will distract and prevent it from fulfilling its
constitutional responsibilities.”

The ICC order is a setback to Africa’s efforts to get the United Nations Security Council (UNSC) to reconsider the controversial article 27 of the 1998 Rome Statute on ICC that
took away the immunity of sitting leaders.

In the 21st century, Africa may be the only continent experiencing a serious assault on sovereign immunity.

However, expanding the mandate of the African Court on Human and Peoples’ Rights (AfCHPR) as a regional mechanism might be Africa’s solution to the challenge of
balancing between impunity and sovereign immunity.

The law,as the saying goes,ia an ass,but ICC’s,The Hague kind of international “Justice” is a farce.

“The African Story as told by Africans”.©African News Digest®

“The African Story as told by Africans”.©African News Digest®

“The African Story as told by Africans”.©African News Digest®

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