Post by Onyango Oloo on Oct 15, 2017 23:58:42 GMT 3
A Digital Essay by Onyango Oloo
Today, Sunday October 15, 2017, is a significant day for me.
It is the day a great African was killed. Captain Thomas Isidore Sankara, the revolutionary leader of Burkina Faso was cut down on the express instructions of his best friend, the man who helped to ascend to power in that tiny West African country 30 years ago.
Closer home, yesterday, October 14th a few years ago, the Pan African icon, Mwalimu Julius Nyerere of next door Tanzania, breathed his last.
But the average Kenyan surfing through Tweeter would not even guess what a momentous occasion this weekend has been.
The effervescent journalists from Citizen, NTV, KTN K24 Standard, Daily Nation, the Star and other media houses spent the day broadcasting their clean hands and how they had committed this great revolutionary act of washing them. Not a squeak about the shooting of children and acts of police brutality all over Kenya.
Today, I want to talk about the momentous events taking place in the country.
And it is not about Raila Odinga, Uhuru Kenyatta or even about Ekuru Aukot.
I want to say something about genocide, ethnic cleansing and the pros and cons of a so called “benevolent dictatorship".
Then I intend to explore the possibilities of a “Third Liberation in Kenya.”
Sounds like a pretty tall order isn’t it?
Well.
Let us see where we are when I come to the last sentence of this digital essay.
Let us begin with Jubilee’s David Wakairu Murathe and his dreams about following Yoweri Museveni and Paul Kagame.
Here is how one television station captured him:
Now let me say at the outset that in 2016, I took the trouble of hunting down Murathe and requesting him to be one of my Facebook friends.
You see, the guy was a Third Year student when I was a fresher at the University of Nairobi.
We later hooked up as fellow inmates at Kamiti Maximum Prison.
We were even in the same party-although not at the same time. When Murathe was elected the SDP MP for Gatanga in 1997 I was in exile in Canada.
He is someone I thought I knew slightly.
David Murathe was a victim of the Nyayo House torture chambers.
His tale in the dungeons is captured in this K24 documentary where he is pretty articulate about his experience. I will let you watch and judge for yourself:
Now, can you believe that THIS IS THE SAME GUY TALKING CASUALLY ABOUT DICTATORSHIP?
Next, let us talk GENOCIDE.
The indomitable investigative blogger Chris Kumekucha recently stated in this YouTube that I have taken the liberty to share that Jubilee is targeting members of the Luo ethnic group for elimination:
Make your own judgment.
I will invite my readers to take a look at Genocide, War Crimes and Crimes Against Humanity A Digest of the Case Law of the International Criminal Tribunal for Rwanda. It is published by Human Rights Watch. It runs to 522 pages. Among the topics the publication looks at include, genocide ,crimes against humanity ; war crimes ,individual criminal responsibility ,command responsibility; alibi and special defenses , charging, cumulative convictions and sentencing .
I have included the url for easier reference:
www.hrw.org/sites/default/files/reports/ictr0110webwcover.pdf
I would like to remind those readers who lean more to the Jubilee side that the matter of the International Criminal Court and the cases against Uhuru Kenyatta and William Ruto are not over yet. We know that Fatou Bensouda was so frustrated that she withdraw the cases citing interference with the witnesses. Recently there was news that Ocampo was involved in shenanigans to get Uhuru Kenyatta of the hook. But with the criminal activities of the Kenya police and their Mungiki sidekicks there is a possibility that the Jubilee digital duo may not be off the hook. It may also be useful if my readers rummaged on the internet for a New York Times article by James Verrini titled the "Prosecutor and the President" which has a lot of insight on Uhuru’s dealing with Mungiki and his culpability or otherwise with the serious charges of crimes against humanity.
Now here is an extract from James Verrini's article to tease you to do more research:
Kenyatta’s rise coincided with the rise of Mungiki, the group Moreno-Ocampo would later accuse him of conspiring with in the postelection violence. Started as a tribal revivalist movement, Mungiki grew into a militaristic political fraternity and then into a criminal gang. Around the time Mungiki fought to take over the lucrative private bus lines that are the main form of transport in Kenya, in the early 2000s, the gang staged a massacre in northern Nairobi that left severed heads scattered in the streets.
By then, Mungiki was being described as a “state within a state,” with up to two million members, according to reports. They swore an oath of loyalty to the Kikuyu tribe and the Mungiki leader, a charismatic, ruthless man known as Maina Njenga. According to the I.C.C., new recruits “were told they would be killed if they violated the oath or left the organization.” When clashes broke out between Kikuyu and other tribes, Njenga dispatched his men to fight.
He also persuaded politicians to take the Mungiki oath. Paul Muite, a member of Parliament at the time and now a lawyer who represents Njenga and other members of Mungiki, which is still active, told me that almost every Kikuyu politician of consequence he knew during that era took the oath. For Njenga, it was “a way of collecting” power, Muite says. According to Muite and a former lieutenant of Njenga’s with whom I spoke, one of the politicians who took the oath, before becoming president, was Kibaki.
Some Mungiki members, including Njenga, supported Kenyatta’s 2002 presidential campaign. Kenyatta denounced the group and would later tell Moreno-Ocampo in court that “I have always publicly condemned and stated that I have no association whatsoever with Mungiki.” Njenga’s former lieutenant, however, described to me a series of meetings he attended with Kenyatta and Njenga in 2002, saying that Kenyatta was friendly with Mungiki. But, he added, Kenyatta didn’t like or trust Njenga.
In the 2007 election, Kenyatta did not run, instead supporting Kibaki in his race against Raila Odinga. By the close of Election Day, two days after Christmas, the vote was too close to call. The count was delayed. The tally center in Nairobi was mysteriously broken into. Then on Dec. 30, the government suddenly announced Kibaki had won. He was hurriedly sworn in, and a media blackout was imposed. Odinga instructed his followers to protest. By New Year’s Day, Kikuyu were being slaughtered. Mungiki began striking back in January.
The government did little to stop the Moreno-Ocampo, who monitored the violence as it was happening, traveled to Nairobi to speak with Kibaki. He encouraged Kibaki to refer Kenya to the I.C.C., as Congo and Uganda had made referrals. Government capacity wasn’t the problem, Moreno-Ocampo knew. Kenya was capable of trying the suspects. The problem was as it had been in Argentina: The government was the criminal. And not only the government. The National Commission on Human Rights report listed more than 200 suspected inciters and funders of the violence, including presidential cabinet members, legislators, businessmen, shopkeepers, farmers. In a moment of collective insanity, Kenyan society had turned on itself.
Still, Moreno-Ocampo continued to press Kenyan officials to begin prosecutions. In 2009, the Kenyan Parliament voted against a tribunal - unsurprisingly, as the Parliament itself was full of suspects - and Moreno-Ocampo requested that the I.C.C. judges allow him to open an investigation. They did. It was the first time he invoked his power to seek charges on his own authority, without a referral.
The challenges were considerable, he knew. It was one thing to investigate militias at the invitation of a government, but quite another to investigate a government. Yet Moreno-Ocampo felt this was what the I.C.C. had been created for — to fight impunity. “This is a different kind of case,” he told The Times in 2010. “This isn’t about militias. It’s about politicians and political parties. It’s about investigating leadership.”
Polls showed a majority of Kenyans approved of the I.C.C.’s intervention. An editorial in The Nation, Kenya’s main daily newspaper, said, “No one has ever come as close as [Moreno-Ocampo] to slaying the dragon of impunity in Kenya.” On the buses of Nairobi, where operators compete for fares by adorning their vehicles with icons - Jesus Christ, Tupac Shakur, Arsenal forwards - Moreno-Ocampo’s face appeared.
The I.C.C.’s preliminary examination in Kenya was based largely on the work of the Kenyan commissions. Each had heard testimony that Kenyatta was at meetings with Mungiki. The Waki report didn’t name Kenyatta, but the National Commission on Human Rights report did, saying that he reportedly “attended meetings to plan for retaliatory violence by the Kikuyus” and “contributed funds.” Kenyatta was considered by many Kikuyu, including many Mungiki, to be their leader, and was understood to be the richest man in the country. If anyone had the motivation and funds to back an ethnic war, Moreno-Ocampo’s investigators reasoned, it was Kenyatta.
Moreno-Ocampo had by now built important cases in Uganda,Congo, Central African Republic and Sudan. “The world’s prosecutor,” as he was dubbed, seemed to be everywhere: magazine spreads, cable news, Davos. His critics complained that he thrust himself into the limelight, and they had a point -he allowed four different feature documentary crews access to The Hague -but even they couldn’t deny that he put the court on the map.
By the time the preliminary examination in Kenya began, however, the other cases had stalled. Only one trial,that of the Congolese warlord Thomas Lubanga, was underway.The court’s lack of political and prosecutorial powers were partly to blame. The United States, China and Russia had refused to join it. George W. Bush openly tried to cripple it by, among other things, demanding immunity for Americans. And Moreno-Ocampo had none of the prosecutorial resources - subpoenas, surveillance, policing — available to his domestic counterparts. Alex Whiting, a onetime federal prosecutor in Boston who became Moreno-Ocampo’s prosecutions coordinator, told me the Kenyatta case “was like trying to prosecute an organized-crime case without the tools the Department of Justice uses to prosecute organized crime”-though, for this reason,Moreno-Ocampo’s temperament was an asset. “You have to have a big ego, because you don’t have much else.”
But Moreno-Ocampo himself may have been the greatest obstacle to the court’s success, members of his staff told me. They didn’t question his devotion -he often worked seven days a week, closely managing every case -but increasingly they questioned his judgment, which seemed always caught between that ego and his idealism. He inspired fierce admiration and dislike, sometimes in the same people. One attorney, who resigned because he couldn’t stand Moreno-Ocampo, nevertheless lauded the prosecutor’s commitment.
Another, whom Moreno-Ocampo reduced to tears in meetings, defended him to me adamantly. When the journal World Affairs published a critical profile of Moreno-Ocampo, one former staff member attacked another in the online comments section.
In Vienna, I heard Moreno-Ocampo express remorse only twice. Once was when I asked about the atmosphere in The Hague. “It was a mess,” he acknowledged. “I fought with all of my guys, because I was involved in everything. That’s the problem: All of us were totally emotionally involved. If not, you’re not there.”
On the buses of Nairobi, where operators adorn their vehicles with Jesus Christ and Tupac Shakur, Moreno-Ocampo’s face appeared.
A larger problem was his vision of the court’s mission. He believed in the pre-emptive power of prosecution - “the shadow of the court,” as he liked to call it. In his inaugural address in The Hague, Moreno-Ocampo said the court’s success would be measured not by how many cases it tried but by how few. One investigator I spoke with said Moreno-Ocampo seemed to see the I.C.C. not as a forensic body so much as a “naming and shaming” organization, like Human Rights Watch or Amnesty International. And while it was true that the court’s small budget limited the size of his investigations, he was, some say, already more interested in prominence than evidence. A former court attorney told me: “He would see the leader of a state and say: ‘There must be evidence out there. Go get it for me.’ ”
The investigation in Congo began calamitously. Bernard Lavigne, formerly a French domestic prosecutor, became Moreno-Ocampo’s first lead investigator in Congo. “We accumulated a lot of information about one militia,” Lavigne told me. “Then suddenly, because of a political decision by Luis or his political committee, we were obliged to change our planning and our investigative work and concentrate on a new target. It was completely crazy. ... We put in danger a lot of people.” The case Moreno-Ocampo brought against Lubanga, for recruiting child soldiers, “barely scratched the surface of the conflict,” Paul Seils, the first director of Moreno-Ocampo’s preliminary-examination unit, says. Moreno-Ocam¬po removed the lead attorney weeks before the trial commenced and clashed with the presiding justice, who accused him of trying to undermine the judiciary and pervert the Rome Statute.
In conversation, Moreno-Ocampo has a habit of ignoring criticism. It’s unclear if this is confidence or evasion. When I asked him about the censure, he described that judge as “brilliant” and “great.”
After the United Nations Security Council referred the atrocities in Darfur to the I.C.C. in 2005, the court charged President Omar al-Bashir of Sudan with crimes against humanity, war crimes and, later, genocide. The judges issued an arrest warrant. There is little question Bashir is guilty of the first two charges. He could be guilty of genocide too, but the court’s investigation was not the best proof of it. An attorney involved told me the prosecutor’s office did little independent work: Investigators never went to Darfur. When I brought this up, Moreno-Ocampo said: “Sometimes some of the lawyers are not going to understand the case. I’m sorry for them.”
Bashir was not popular in Africa, but he was the first head of state the court charged. This made other leaders, especially those accused of atrocities, nervous. It also vexed African Union diplomats who were trying to broker a peace in Darfur. (Muammar el-Qaddafi, whom the court would later charge with war crimes in Libya, was at the time the African Union’s chairman.) In 2008, the African Union passed a resolution that said charging African heads of state was an affront to the “sovereignty and integrity of the continent.” Bashir called the I.C.C. a “colonial court.” Self-serving though his position was, it caught on. Complaints about the I.C.C.’s “Africa bias” piled up.
Unbowed, Moreno-Ocampo pushed on in Kenya. In December 2010, he announced the suspects he wanted to charge. For the first wave of postelection violence, he named the chairman of Odinga’s party and Joshua Arap Sang, a radio host who had broadcast anti-Kikuyu hate speech. A member of Parliament, William Ruto, was accused of being the ringleader. For the second wave, committed by Mungiki and the police, he named Kibaki’s cabinet secretary, Francis Muthaura; the commissioner of police, Gen. Mohammed Hussein Ali; and Kenyatta.
Before announcing the suspects, Moreno-Ocampo met with Kenyans including investigators and lawyers at the Serena Hotel in Nairobi. The lawyers approved of his desire to combat impunity and prevent political violence during the next election in Kenya. But they warned him that Kenya wasn’t Sudan or Congo. Its politicians were just as ruthless but more sophisticated. The suspects would try to kill the cases and discredit the I.C.C. So would President Kibaki’s government. Kenyatta, elevated to deputy prime minister after the postelection violence, was his protégé. “They’re going to fight back very, very hard,” James Gondi, a Kenyan lawyer who had interned at the I.C.C., told Moreno-Ocampo. But the prosecutor seemed unconcerned. He pointed out that he’d put away generals in Argentina.
Later, some questioned whether Kenyatta was as culpable as the case against him claimed. George Kegoro, the Waki Commission secretary, told me that when Kenyatta was questioned by the commission, he “saw himself as a peace¬maker.” Pascal Kambale, the Waki commissioner, said that “irrespective of Kenyatta’s involvement, Mungiki was going to do what they did.”
In the I.C.C. system at the time, the prosecutor’s office collected enough evidence for the court to hold pretrial hearings, in which the judges would decide whether there were sufficient grounds to confirm the charges. If they did, the cases proceeded. This gave defendants ample time to destroy evidence and interfere with witnesses, a recurring problem.
By the time Moreno-Ocampo’s team got moving in Kenya, more than two years had elapsed since the postelection violence. Their investigation, which would go on for over four years, was far more rigorous than those in Congo or Sudan. They interviewed hundreds of victims and suspected perpetrators. But many witnesses who had opened up to the Kenyan commissions were no longer willing to speak.
Faced with a dwindling pool of evidence, Moreno-Ocampo’s team approached General Ali’s attorney with a possible offer: If Ali testified against Kenyatta and Muthaura, the charges against him might be dismissed. The Kenyan commissions had gathered strong evidence against Ali, but circumstances had changed. The attorney general had forbidden the police to speak to the I.C.C. According to Kenyan investigators with whom I spoke, other police officers who were involved in the violence had been killed. Ali turned down the offer. The judges didn’t confirm the charges against him. The prosecutor’s office later withdrew the cases against Muthaura and Odinga’s party chairman.
There was one group willing to help the court: Mungiki. Many gang members were gone -“killed or forcibly disappeared in an apparent cleanup operation,” the prosecution claimed- but some were still alive and willing to testify. Especially crucial were three confidential Mungiki “linkage” witnesses. One claimed he saw Kenyatta at meetings where attacks were planned; another, that he was told of these meetings, though he wasn’t present; and a third, that he met with Kenyatta beforehand to discuss violence.
The case hinged on these men. But some people in the prosecutor’s office worried about their reliability. Kenyatta’s attorney claimed in court that the first two witnesses tried to extort him in exchange for information that could aid the defense, and when he refused, threatened him. He showed little evidence of the claim, but neither did the prosecution dispute it. (“It strikes me as entirely plausible,” Benjamin Gumpert, an I.C.C. lawyer who worked on the Kenyatta case, told me.) Kenyans who knew the third witness, meanwhile, not only doubted his account but also questioned whether he was in Mungiki. Maina Njenga’s former lieutenant says the witness was never in the gang. There were arguments in The Hague over whether to use him. The former court attorney told me it appeared the man would say anything to get into the court’s protection program. But the case against Kenyatta was too thin to sacrifice him.
Moreno-Ocampo admitted to me that the evidence against Kenyatta was not as strong as he would have liked. But all he had to do for the moment was get through the pretrial hearings. After that, more evidence could be found. And he had a card up his sleeve: Maina Njenga.
Moreno-Ocampo’s team had considered charging the Mungiki leader. Instead, they had turned him. When Njenga was questioned by Kenyan investigators, he pleaded ignorance. But to the I.C.C. investigators, he came clean. He detailed the structure of his organization and its role in the violence. Njenga claimed to his lawyer, Paul Muite, that he had personally administered the Mungiki oath of loyalty to Kenyatta, though whether Njenga told this to I.C.C. investigators is unclear. Njenga was “very forthright,” Muite told me, and he later agreed to testify in The Hague.
I think it is also very worthwhile to read the full interview that the Nairobi-based investigative journalist Kwamchetsi Makokha did with ICC Prosecutor, Fatou Bensouda which you can find by going to this link:
jfjustice.net/en/icc-cases/icc-chief-prosecutor-shares-thoughts-on-kenyan-cases
Now to wrap up, three or four words about the 3rd Liberation in Kenya.
Well, I now realize that is a whole kettle of samaki, which means that is my future digital, OK?
Today, Sunday October 15, 2017, is a significant day for me.
It is the day a great African was killed. Captain Thomas Isidore Sankara, the revolutionary leader of Burkina Faso was cut down on the express instructions of his best friend, the man who helped to ascend to power in that tiny West African country 30 years ago.
Closer home, yesterday, October 14th a few years ago, the Pan African icon, Mwalimu Julius Nyerere of next door Tanzania, breathed his last.
But the average Kenyan surfing through Tweeter would not even guess what a momentous occasion this weekend has been.
The effervescent journalists from Citizen, NTV, KTN K24 Standard, Daily Nation, the Star and other media houses spent the day broadcasting their clean hands and how they had committed this great revolutionary act of washing them. Not a squeak about the shooting of children and acts of police brutality all over Kenya.
Today, I want to talk about the momentous events taking place in the country.
And it is not about Raila Odinga, Uhuru Kenyatta or even about Ekuru Aukot.
I want to say something about genocide, ethnic cleansing and the pros and cons of a so called “benevolent dictatorship".
Then I intend to explore the possibilities of a “Third Liberation in Kenya.”
Sounds like a pretty tall order isn’t it?
Well.
Let us see where we are when I come to the last sentence of this digital essay.
Let us begin with Jubilee’s David Wakairu Murathe and his dreams about following Yoweri Museveni and Paul Kagame.
Here is how one television station captured him:
Now let me say at the outset that in 2016, I took the trouble of hunting down Murathe and requesting him to be one of my Facebook friends.
You see, the guy was a Third Year student when I was a fresher at the University of Nairobi.
We later hooked up as fellow inmates at Kamiti Maximum Prison.
We were even in the same party-although not at the same time. When Murathe was elected the SDP MP for Gatanga in 1997 I was in exile in Canada.
He is someone I thought I knew slightly.
David Murathe was a victim of the Nyayo House torture chambers.
His tale in the dungeons is captured in this K24 documentary where he is pretty articulate about his experience. I will let you watch and judge for yourself:
Now, can you believe that THIS IS THE SAME GUY TALKING CASUALLY ABOUT DICTATORSHIP?
Next, let us talk GENOCIDE.
The indomitable investigative blogger Chris Kumekucha recently stated in this YouTube that I have taken the liberty to share that Jubilee is targeting members of the Luo ethnic group for elimination:
Make your own judgment.
I will invite my readers to take a look at Genocide, War Crimes and Crimes Against Humanity A Digest of the Case Law of the International Criminal Tribunal for Rwanda. It is published by Human Rights Watch. It runs to 522 pages. Among the topics the publication looks at include, genocide ,crimes against humanity ; war crimes ,individual criminal responsibility ,command responsibility; alibi and special defenses , charging, cumulative convictions and sentencing .
I have included the url for easier reference:
www.hrw.org/sites/default/files/reports/ictr0110webwcover.pdf
I would like to remind those readers who lean more to the Jubilee side that the matter of the International Criminal Court and the cases against Uhuru Kenyatta and William Ruto are not over yet. We know that Fatou Bensouda was so frustrated that she withdraw the cases citing interference with the witnesses. Recently there was news that Ocampo was involved in shenanigans to get Uhuru Kenyatta of the hook. But with the criminal activities of the Kenya police and their Mungiki sidekicks there is a possibility that the Jubilee digital duo may not be off the hook. It may also be useful if my readers rummaged on the internet for a New York Times article by James Verrini titled the "Prosecutor and the President" which has a lot of insight on Uhuru’s dealing with Mungiki and his culpability or otherwise with the serious charges of crimes against humanity.
Now here is an extract from James Verrini's article to tease you to do more research:
Kenyatta’s rise coincided with the rise of Mungiki, the group Moreno-Ocampo would later accuse him of conspiring with in the postelection violence. Started as a tribal revivalist movement, Mungiki grew into a militaristic political fraternity and then into a criminal gang. Around the time Mungiki fought to take over the lucrative private bus lines that are the main form of transport in Kenya, in the early 2000s, the gang staged a massacre in northern Nairobi that left severed heads scattered in the streets.
By then, Mungiki was being described as a “state within a state,” with up to two million members, according to reports. They swore an oath of loyalty to the Kikuyu tribe and the Mungiki leader, a charismatic, ruthless man known as Maina Njenga. According to the I.C.C., new recruits “were told they would be killed if they violated the oath or left the organization.” When clashes broke out between Kikuyu and other tribes, Njenga dispatched his men to fight.
He also persuaded politicians to take the Mungiki oath. Paul Muite, a member of Parliament at the time and now a lawyer who represents Njenga and other members of Mungiki, which is still active, told me that almost every Kikuyu politician of consequence he knew during that era took the oath. For Njenga, it was “a way of collecting” power, Muite says. According to Muite and a former lieutenant of Njenga’s with whom I spoke, one of the politicians who took the oath, before becoming president, was Kibaki.
Some Mungiki members, including Njenga, supported Kenyatta’s 2002 presidential campaign. Kenyatta denounced the group and would later tell Moreno-Ocampo in court that “I have always publicly condemned and stated that I have no association whatsoever with Mungiki.” Njenga’s former lieutenant, however, described to me a series of meetings he attended with Kenyatta and Njenga in 2002, saying that Kenyatta was friendly with Mungiki. But, he added, Kenyatta didn’t like or trust Njenga.
In the 2007 election, Kenyatta did not run, instead supporting Kibaki in his race against Raila Odinga. By the close of Election Day, two days after Christmas, the vote was too close to call. The count was delayed. The tally center in Nairobi was mysteriously broken into. Then on Dec. 30, the government suddenly announced Kibaki had won. He was hurriedly sworn in, and a media blackout was imposed. Odinga instructed his followers to protest. By New Year’s Day, Kikuyu were being slaughtered. Mungiki began striking back in January.
The government did little to stop the Moreno-Ocampo, who monitored the violence as it was happening, traveled to Nairobi to speak with Kibaki. He encouraged Kibaki to refer Kenya to the I.C.C., as Congo and Uganda had made referrals. Government capacity wasn’t the problem, Moreno-Ocampo knew. Kenya was capable of trying the suspects. The problem was as it had been in Argentina: The government was the criminal. And not only the government. The National Commission on Human Rights report listed more than 200 suspected inciters and funders of the violence, including presidential cabinet members, legislators, businessmen, shopkeepers, farmers. In a moment of collective insanity, Kenyan society had turned on itself.
Still, Moreno-Ocampo continued to press Kenyan officials to begin prosecutions. In 2009, the Kenyan Parliament voted against a tribunal - unsurprisingly, as the Parliament itself was full of suspects - and Moreno-Ocampo requested that the I.C.C. judges allow him to open an investigation. They did. It was the first time he invoked his power to seek charges on his own authority, without a referral.
The challenges were considerable, he knew. It was one thing to investigate militias at the invitation of a government, but quite another to investigate a government. Yet Moreno-Ocampo felt this was what the I.C.C. had been created for — to fight impunity. “This is a different kind of case,” he told The Times in 2010. “This isn’t about militias. It’s about politicians and political parties. It’s about investigating leadership.”
Polls showed a majority of Kenyans approved of the I.C.C.’s intervention. An editorial in The Nation, Kenya’s main daily newspaper, said, “No one has ever come as close as [Moreno-Ocampo] to slaying the dragon of impunity in Kenya.” On the buses of Nairobi, where operators compete for fares by adorning their vehicles with icons - Jesus Christ, Tupac Shakur, Arsenal forwards - Moreno-Ocampo’s face appeared.
The I.C.C.’s preliminary examination in Kenya was based largely on the work of the Kenyan commissions. Each had heard testimony that Kenyatta was at meetings with Mungiki. The Waki report didn’t name Kenyatta, but the National Commission on Human Rights report did, saying that he reportedly “attended meetings to plan for retaliatory violence by the Kikuyus” and “contributed funds.” Kenyatta was considered by many Kikuyu, including many Mungiki, to be their leader, and was understood to be the richest man in the country. If anyone had the motivation and funds to back an ethnic war, Moreno-Ocampo’s investigators reasoned, it was Kenyatta.
Moreno-Ocampo had by now built important cases in Uganda,Congo, Central African Republic and Sudan. “The world’s prosecutor,” as he was dubbed, seemed to be everywhere: magazine spreads, cable news, Davos. His critics complained that he thrust himself into the limelight, and they had a point -he allowed four different feature documentary crews access to The Hague -but even they couldn’t deny that he put the court on the map.
By the time the preliminary examination in Kenya began, however, the other cases had stalled. Only one trial,that of the Congolese warlord Thomas Lubanga, was underway.The court’s lack of political and prosecutorial powers were partly to blame. The United States, China and Russia had refused to join it. George W. Bush openly tried to cripple it by, among other things, demanding immunity for Americans. And Moreno-Ocampo had none of the prosecutorial resources - subpoenas, surveillance, policing — available to his domestic counterparts. Alex Whiting, a onetime federal prosecutor in Boston who became Moreno-Ocampo’s prosecutions coordinator, told me the Kenyatta case “was like trying to prosecute an organized-crime case without the tools the Department of Justice uses to prosecute organized crime”-though, for this reason,Moreno-Ocampo’s temperament was an asset. “You have to have a big ego, because you don’t have much else.”
But Moreno-Ocampo himself may have been the greatest obstacle to the court’s success, members of his staff told me. They didn’t question his devotion -he often worked seven days a week, closely managing every case -but increasingly they questioned his judgment, which seemed always caught between that ego and his idealism. He inspired fierce admiration and dislike, sometimes in the same people. One attorney, who resigned because he couldn’t stand Moreno-Ocampo, nevertheless lauded the prosecutor’s commitment.
Another, whom Moreno-Ocampo reduced to tears in meetings, defended him to me adamantly. When the journal World Affairs published a critical profile of Moreno-Ocampo, one former staff member attacked another in the online comments section.
In Vienna, I heard Moreno-Ocampo express remorse only twice. Once was when I asked about the atmosphere in The Hague. “It was a mess,” he acknowledged. “I fought with all of my guys, because I was involved in everything. That’s the problem: All of us were totally emotionally involved. If not, you’re not there.”
On the buses of Nairobi, where operators adorn their vehicles with Jesus Christ and Tupac Shakur, Moreno-Ocampo’s face appeared.
A larger problem was his vision of the court’s mission. He believed in the pre-emptive power of prosecution - “the shadow of the court,” as he liked to call it. In his inaugural address in The Hague, Moreno-Ocampo said the court’s success would be measured not by how many cases it tried but by how few. One investigator I spoke with said Moreno-Ocampo seemed to see the I.C.C. not as a forensic body so much as a “naming and shaming” organization, like Human Rights Watch or Amnesty International. And while it was true that the court’s small budget limited the size of his investigations, he was, some say, already more interested in prominence than evidence. A former court attorney told me: “He would see the leader of a state and say: ‘There must be evidence out there. Go get it for me.’ ”
The investigation in Congo began calamitously. Bernard Lavigne, formerly a French domestic prosecutor, became Moreno-Ocampo’s first lead investigator in Congo. “We accumulated a lot of information about one militia,” Lavigne told me. “Then suddenly, because of a political decision by Luis or his political committee, we were obliged to change our planning and our investigative work and concentrate on a new target. It was completely crazy. ... We put in danger a lot of people.” The case Moreno-Ocampo brought against Lubanga, for recruiting child soldiers, “barely scratched the surface of the conflict,” Paul Seils, the first director of Moreno-Ocampo’s preliminary-examination unit, says. Moreno-Ocam¬po removed the lead attorney weeks before the trial commenced and clashed with the presiding justice, who accused him of trying to undermine the judiciary and pervert the Rome Statute.
In conversation, Moreno-Ocampo has a habit of ignoring criticism. It’s unclear if this is confidence or evasion. When I asked him about the censure, he described that judge as “brilliant” and “great.”
After the United Nations Security Council referred the atrocities in Darfur to the I.C.C. in 2005, the court charged President Omar al-Bashir of Sudan with crimes against humanity, war crimes and, later, genocide. The judges issued an arrest warrant. There is little question Bashir is guilty of the first two charges. He could be guilty of genocide too, but the court’s investigation was not the best proof of it. An attorney involved told me the prosecutor’s office did little independent work: Investigators never went to Darfur. When I brought this up, Moreno-Ocampo said: “Sometimes some of the lawyers are not going to understand the case. I’m sorry for them.”
Bashir was not popular in Africa, but he was the first head of state the court charged. This made other leaders, especially those accused of atrocities, nervous. It also vexed African Union diplomats who were trying to broker a peace in Darfur. (Muammar el-Qaddafi, whom the court would later charge with war crimes in Libya, was at the time the African Union’s chairman.) In 2008, the African Union passed a resolution that said charging African heads of state was an affront to the “sovereignty and integrity of the continent.” Bashir called the I.C.C. a “colonial court.” Self-serving though his position was, it caught on. Complaints about the I.C.C.’s “Africa bias” piled up.
Unbowed, Moreno-Ocampo pushed on in Kenya. In December 2010, he announced the suspects he wanted to charge. For the first wave of postelection violence, he named the chairman of Odinga’s party and Joshua Arap Sang, a radio host who had broadcast anti-Kikuyu hate speech. A member of Parliament, William Ruto, was accused of being the ringleader. For the second wave, committed by Mungiki and the police, he named Kibaki’s cabinet secretary, Francis Muthaura; the commissioner of police, Gen. Mohammed Hussein Ali; and Kenyatta.
Before announcing the suspects, Moreno-Ocampo met with Kenyans including investigators and lawyers at the Serena Hotel in Nairobi. The lawyers approved of his desire to combat impunity and prevent political violence during the next election in Kenya. But they warned him that Kenya wasn’t Sudan or Congo. Its politicians were just as ruthless but more sophisticated. The suspects would try to kill the cases and discredit the I.C.C. So would President Kibaki’s government. Kenyatta, elevated to deputy prime minister after the postelection violence, was his protégé. “They’re going to fight back very, very hard,” James Gondi, a Kenyan lawyer who had interned at the I.C.C., told Moreno-Ocampo. But the prosecutor seemed unconcerned. He pointed out that he’d put away generals in Argentina.
Later, some questioned whether Kenyatta was as culpable as the case against him claimed. George Kegoro, the Waki Commission secretary, told me that when Kenyatta was questioned by the commission, he “saw himself as a peace¬maker.” Pascal Kambale, the Waki commissioner, said that “irrespective of Kenyatta’s involvement, Mungiki was going to do what they did.”
In the I.C.C. system at the time, the prosecutor’s office collected enough evidence for the court to hold pretrial hearings, in which the judges would decide whether there were sufficient grounds to confirm the charges. If they did, the cases proceeded. This gave defendants ample time to destroy evidence and interfere with witnesses, a recurring problem.
By the time Moreno-Ocampo’s team got moving in Kenya, more than two years had elapsed since the postelection violence. Their investigation, which would go on for over four years, was far more rigorous than those in Congo or Sudan. They interviewed hundreds of victims and suspected perpetrators. But many witnesses who had opened up to the Kenyan commissions were no longer willing to speak.
Faced with a dwindling pool of evidence, Moreno-Ocampo’s team approached General Ali’s attorney with a possible offer: If Ali testified against Kenyatta and Muthaura, the charges against him might be dismissed. The Kenyan commissions had gathered strong evidence against Ali, but circumstances had changed. The attorney general had forbidden the police to speak to the I.C.C. According to Kenyan investigators with whom I spoke, other police officers who were involved in the violence had been killed. Ali turned down the offer. The judges didn’t confirm the charges against him. The prosecutor’s office later withdrew the cases against Muthaura and Odinga’s party chairman.
There was one group willing to help the court: Mungiki. Many gang members were gone -“killed or forcibly disappeared in an apparent cleanup operation,” the prosecution claimed- but some were still alive and willing to testify. Especially crucial were three confidential Mungiki “linkage” witnesses. One claimed he saw Kenyatta at meetings where attacks were planned; another, that he was told of these meetings, though he wasn’t present; and a third, that he met with Kenyatta beforehand to discuss violence.
The case hinged on these men. But some people in the prosecutor’s office worried about their reliability. Kenyatta’s attorney claimed in court that the first two witnesses tried to extort him in exchange for information that could aid the defense, and when he refused, threatened him. He showed little evidence of the claim, but neither did the prosecution dispute it. (“It strikes me as entirely plausible,” Benjamin Gumpert, an I.C.C. lawyer who worked on the Kenyatta case, told me.) Kenyans who knew the third witness, meanwhile, not only doubted his account but also questioned whether he was in Mungiki. Maina Njenga’s former lieutenant says the witness was never in the gang. There were arguments in The Hague over whether to use him. The former court attorney told me it appeared the man would say anything to get into the court’s protection program. But the case against Kenyatta was too thin to sacrifice him.
Moreno-Ocampo admitted to me that the evidence against Kenyatta was not as strong as he would have liked. But all he had to do for the moment was get through the pretrial hearings. After that, more evidence could be found. And he had a card up his sleeve: Maina Njenga.
Moreno-Ocampo’s team had considered charging the Mungiki leader. Instead, they had turned him. When Njenga was questioned by Kenyan investigators, he pleaded ignorance. But to the I.C.C. investigators, he came clean. He detailed the structure of his organization and its role in the violence. Njenga claimed to his lawyer, Paul Muite, that he had personally administered the Mungiki oath of loyalty to Kenyatta, though whether Njenga told this to I.C.C. investigators is unclear. Njenga was “very forthright,” Muite told me, and he later agreed to testify in The Hague.
I think it is also very worthwhile to read the full interview that the Nairobi-based investigative journalist Kwamchetsi Makokha did with ICC Prosecutor, Fatou Bensouda which you can find by going to this link:
jfjustice.net/en/icc-cases/icc-chief-prosecutor-shares-thoughts-on-kenyan-cases
Now to wrap up, three or four words about the 3rd Liberation in Kenya.
Well, I now realize that is a whole kettle of samaki, which means that is my future digital, OK?