Saturday, January 28, 2012

Kenya: Lessons and Implications of the Confirmation of Charges Against Kenya’s “Ocampo Four”

Source: ISS

Lessons and Implications of the Confirmation of Charges Against Kenya’s “Ocampo Four”

Andrews Atta-Asamoah, Senior Researcher, Conflict Prevention and Risk Analysis Division, ISS Pretoria Office

As judge Ekaterina Trendafilova read out, on 23 January 2012, the carefully crafted ruling of the International Criminal Court (ICC) on the confirmation of charges against the Ocampo Six, few Kenyans may have had doubts about the impact of those words on the political and security landscape of their country, and particularly the political destinies of two of Kenya’s presidential hopefuls.

As millions of people stayed glued to their TV and radio sets and some thousands to internet streams, the less than 20 minutes broadcast was reminiscent of the 15 December 2010 broadcast in which the prosecutor of the ICC, Luis Moreno-Ocampo, named Deputy Prime Minister and Minister of Finance Uhuru Kenyatta, Eldoret North MP William Ruto, Head of the Civil Service Francis Muthaura, Former Police Commissioner Major General (rtd) Mohammed Hussein Ali, Tinderet MP Henry Kosgey and journalist Joshua Arap Sang as those accused of bearing the greatest responsibility in the post-election violence in 2007/2008.

One could guess as the ruling was read, for a moment, the extent of anxiety of millions of Kenyans because the build-up to the ruling had been marked with simmering debates and persistent calls from various stakeholders for peace, regardless of the direction of the ruling. When the ruling finally ended with confirmation of charges against four of the six individuals, few people were surprised about the outcome of the ruling because of the nature of the cases that were presented during the hearing and also particularly because there was the general expectation that some of the charges would certainly be confirmed.

Whereas the ruling may not have surprised many, it represents an important milestone in Kenya’s quest for reforms and is likely to shape the country’s political landscape and history in numerous ways. First, even though it does not constitute guilt, the ruling advances the interest of many who appreciate the need for justice as a prerequisite for dealing with impunity on the continent. Kenyans have in recent times persistently pushed for the realisation of a country where impunity has no place. After the post-election violence and the apparent difficulties that would have impeded the establishment of a local judicial process to prosecute the masterminds of the violence, serious questions remained regarding justice for the victims of the violence.

The ICC process has been instrumental in helping answer some of the questions, which still linger in the minds of many. In the past, getting such political bigwigs to answer for their actions anywhere in Africa would have been inconceivable. However, by virtue of the ICC, it can be strongly argued that the days of “untouchables” in the political history of African states is meeting its due challenge. Together with the burgeoning citizen and civil society pressure, gradual increase in the independence of state institutions, and progress in entrenchment of rule of law on the continent, those who still harbour such considerations should beware of the changing times because they are increasingly drifting to the wrong side of Africa’s history. Such changing environments are crucial in establishing the tenets of political responsibility and circumspection on the part of individuals and particularly the political leadership of states in Africa in their dealings with the masses.

Whereas the emerging debate after the ruling has focussed primarily on the two presidential hopefuls, the inclusion of Joshua Arap Sang, a KASS FM Radio executive is perhaps the second most important contribution of the ruling to shaping the political history of Africa. Since the emergence of media pluralism in the advent of democracy in Africa, many countries have seen a proliferation of private media houses, which have contributed immensely to the entrenchment of democracy. In many situations, however, the political and ethnic neutrality of the media practitioners leaves much to be desired. The media in some countries has been known to exhibit little neutrality and professionalism in the discharge of their duties as journalists. Media practitioners therefore often project political and ethnic biases and sometimes offer their media vents as platforms for broadcasting hate speeches, incitements and ideas often detrimental to peace and stability. The confirmation of charges against Sang does not only project the need for circumspection and ethical practice of journalism, but also establishes the place of the media as important stakeholders in the quest for peace and stability. It also registers the fact that irresponsibility in media reportage capable of undermining peace is frowned upon by both domestic and international legal regimes.

In addition to the above, the practical implications of the ruling will be felt in the political landscape of Kenya as it borders on the fate of Deputy PM Uhuru Kenyatta and Honourable William Ruto in the next elections. Prior to the ruling, the two politicians insisted that the outcome would not stop their bid for the presidency. Now that the ruling has gone against them, the reality of their political ambitions vis-à-vis the requirements of the new constitutional dispensation and the choices of Kenyans set the stage for a crucial test of the emerging structures of the state and the leadership qualities of the two.

At the moment, the mood of Kenyans about their suitability or eligibility for presidency are mixed. Whilst a section of Kenyans argue that they can contest, a good section of people hold the view that the named presidential hopefuls need not even attempt it because the ruling questions their integrity for the post of presidency. The possibility of a legal battle ensuing is thus very high in the event of any attempt to bar them from contesting in the next elections and would require legal and academic brains to scrutinise all the laws of the land in search of legislation that may bar or exonerate the two. Already there are on-going debates about the section of the new constitution that may hold the key to prevent them from vying for presidency. Within the growing debate, chapter six of the new constitution has been prominently quoted in this regard.

The chapter provides for leadership, integrity and specifically requires state officers to bring “honour to the nation and dignity to the office”, and to “promote public confidence in the integrity of the office.” It also outlines the guiding principles of leadership and integrity to include “personal integrity, competence and suitability.” Within the interpretation of this provision, the real contention may emerge around the definition of integrity and its immediate relevance to the context of the ICC. A section of Kenyans have already begun arguing that the provision for integrity relates to economic crimes and not cases such as the ICC thus preparing the ground for what appears to be an emerging heated debate. Another key issue, which will need to be resolved, relates to whether confirmation of charges necessarily constitutes guilt against the backdrop that in reading out the ruling, Judge Trendafilova emphasised that the burden of prove of guilt lies on the prosecutor should the trial commence.

In the event of a court ruling barring or permitting the two to contest the presidency, the emerging culture of constitutionalism and rule of law will be certainly tested as well. Already, the respect surrounding the High Court ruling on the date for the next election has raised hopes about the rule of law, respect for the supremacy of the new constitution, and the independence of the emerging structures of the state. If a court decision bars the two from contesting in the presidency and all avenues for redress get fully utilised, they may probably take the matter to the “courts” of public opinion which may end up securitizing the sensitivities surrounding the loyalty of people them. However, given the stern warning by the Judge during the ruling against inciting people, their leverage in exploiting the passions of ardent supporters is dealt a huge blow.