Featured Work, Kenya, The Huffington Post - Fri April 20, 2012

A Political Trial at the ICC? Why, of Course!

Imagine Nick Clegg is to stand trial at the International Criminal Court (ICC) for crimes against humanity. I appreciate some Huffington Post readers might see such a case as perfectly reasonable, but also imagine for a moment that the witnesses on which the case rests have been sourced and then coached by members of the Conservative Party. Imagine also the Chief Prosecutor of the case is Jeremy Kyle, a TV judge famous for dishing out on-air justice to the amusement of the masses. Does this all seem reasonable?

Well, this case is actually taking place, but the man on trial is not our Nick but Uhuru Kenyatta, deputy prime minister of Kenya. For the Conservatives in this real-life parable, read the Orange Democratic Movement, the party of the current Kenyan premier Raila Odinga, a man who shares power with Kenyatta in a coalition government.

And our media-friendly ringmaster is Luis Moreno-Ocampo, a man who, before being appointed ICC chief prosecutor was the finger-wagging star of a ludicrous show on Argentinian television called “La Corte del Pueblo”, or The People’s Court.

Ocampo, who has counted footballer Diego Maradona among his clients, has been in the news of late because of the prosecution of Thomas Lubanga, a Congolese warlord. Yet this has been his only completed case since being handed the hallowed ICC post nine years ago – an abysmal record.

Because of his failure, his publicity instincts have kicked in – up to a point. His recent call for the arrest of Joseph Kony (a Ugandan warlord whose Lord’s Resistance Army has been in decline for years) has helped publicly deflect most criticism of his methods. But the conclusion of the Lubanga case has exposed his office as running witness-sourcing and evidence-gathering operations that would not be admissible in a kangaroo court, let alone for a body expected to deliver the highest levels of international justice.

At the Lubanga trial, Britain’s Justice Sir Adrian Fulford tore into Ocampo: decrying his preference for gathering witness statements for the prosecution by remote control; for using local intermediaries in the Democratic Republic of the Congo (DRC) to source witness statements subsequently co-drafted by the ICC; and for coaching witnesses prior to their appearance at trial.

Fulford threw out many of Ocampo’s witness statements, warning that they were at best deeply flawed, due to the seemingly coercive methods through which they were sourced, and at worst the statements of perjurers. He also warned these intermediaries and even people working within Ocampo’s office they may be prosecuted for their actions.

For his part, the ICC’s chief prosecutor has defended the gathering of evidence by proxy, saying (not unreasonably) that since the DRC is too dangerous for ICC officials to visit, the process had to be done locally.

This may be the case in the badlands of the Congo, but Ocampo has employed precisely the same methods in gathering evidence for the Kenyatta case in Nairobi.

Is Kenya similarly dangerous? Prince William thought not, when he chose to propose to the now
Duchess of Cambridge on Kenya’s rolling grasslands. Or ask the Prada-clad armies of Chelsea and Cheshire who flock to the country every year in search of safari, wilderness, and their inner selves. Compare this with the dense jungle and dawn patrols of Congo, a country where tourism is only for the stout of heart, or the generally deranged.

There is simply no personal, practical or legal reason why Ocampo and his inner circle could not have gathered witness statements directly, on the ground, in Kenya.

Instead they used intermediaries – such as a local charity branded the “Kenya Human Rights
Commission” and another organisation named the Kenya National Commission on Human Rights who were particularly helpful when it came to the witnesses. One of its Commissioners a Mr Omar Hassan it is alleged handily unearthed some of the main witness for the ICC’s prosecution. (One such witness, incidentally, has proven himself to be utterly unreliable, having changed his statement on no fewer than four occasions, including attempting once to retract his statement completely).

Hassan’s good work has not gone unnoticed. He has since been appointed vice chairman of the Friends of Raila, an organisation working to elect Odinga to the Presidency in upcoming elections.

Surely, you would think a witness who has changed his statement on multiple occasions, having been assisted by an intermediary whose intentions were so palpably political, should be dismissed by any reasonable provincial court, let alone the ICC.

Yet the answer to that question would currently seem to be a resounding “No”. There is another player
left to introduce in this twisting little tale: none other than our very own Foreign Office.

Our boys over there, who have spent the past decade seeking to rewrite history from the wrong side of the fence, are chipping in the funding for the witness protection scheme for the Kenyan case. Millions of pounds of taxpayer money have been lavished on the ICC case by the Foreign Office. Britons are paying for the ICC’s chief witness to live a life of pleasant anonymity in the United States.

The Foreign Office also seems to rather like Odinga, whose supporters have been so helpful sourcing witnesses. We have rolled out the red carpet for him on three separate official visits to Britain. Since 2007 he has met David Cameron, Gordon Brown and Prince Charles.

Compare that to the number of official visits to the UK afforded to Mwai Kibaki, president of Kenya since 2002: none. We must like Odinga an awful lot.

So what happens next? Many observers are muttering that the Kenyatta case may collapse given the way the evidence has been gathered. Ocampo’s disastrous tenure at the ICC ends in June, after which he will presumably return to Argentina to preside over more televisual gavel-bashing. Justice Fulford, considered by the international legal profession to be a class act, is meanwhile expected to return to Britain, to preside – or so it is rumoured – over Chris Huhne’s speeding trial.

To borrow the old American political saying, one is left with the distinct impression that the Foreign Office has left us carrying a dead chicken around town. Britain has officially, and highly politically, opted to support the incumbent premier of an African state in an election he is unlikely to win. Our boys in the Foreign Office have also tied us to a case that even the ICC, it would appear, doesn’t believe in, thanks to the highly controversial methods of its chief prosecutor.

Perhaps the Kenyan Foreign Office will retaliate and call for a trial of Nick Clegg and fund the witness protection scheme while members of the Conservative Party gather evidence against him. Jeremy Kyle could even preside. Don’t bet against it.

Elliot Wilson is a British investigative journalist who writes for The Spectator, The Observer and other international publications.


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