ALEMAYEHU G MARIAM
Recently, African leaders, at least those at the helm of the African Union and their flunkies, have been reporting endlessly recurring ghastly nightmares of Lady Justice “race hunting” them with scales in one hand and a sword in the other. President Uhuru Kenyatta, described by Time Magazine as “Kenya’s richest man”, last week vividly described his sleepless nights interrupted by nightmarish naps to his brethren at the African Union:
I do not need to tell your Excellencies about the nightmare my country in particular, and myself and my Deputy as individuals, have had to endure in making this realisation. Western powers are the key drivers of the ICC process. They have used prosecutions as ruses and bait to pressure Kenyan leadership into adopting, or renouncing various positions… The threat of prosecution usually suffices to have pliant countries execute policies favourable to these countries. Through it, regime-changes sleights of hand have been attempted in Africa. A number of them have succeeded. Only a fortnight ago, the Prosecutor proposed undemocratic and unconstitutional adjustments to the Kenyan Presidency. These interventions go beyond interference in the internal affairs of a sovereign State. They constitute a fetid insult to Kenya and Africa. African sovereignty means nothing to the ICC and its patrons.
Life is sometimes a conundrum, a riddle. Kenyatta got his dream job of President of Kenya (his father Jomo was the first President of Kenya) this past March when he was elected by a razor thin margin of 50.7 percent of the vote. He now lives in a nightmare haunted by ghosts of crimes past and “race hunters” present. Kenyatta said, “People have termed this situation [his ICC prosecution] ‘race-hunting’. I find great difficulty adjudging them wrong.” Psychologists say the most common nightmare among people with an overwrought imagination is being chased either by a demon, monster, warlock or madman. In Kenyatta’s nightmare, horned and saw-toothed International Criminal Court (ICC) prosecutors and judges are chasing him right into a cold sweat.
Just last month, Kenyatta loudly proclaimed his innocence at a graduation ceremony at Moi University Eldoret: “Who does not know that myself, William Ruto and Joshua Sang are innocent? Almost everyone in Kenya at least knows who like fighting and causing chaos in this country and can bear us witness that indeed we did not plan to kill people during the 2008 PEV [post-election violence] .” Kenyatta has also proudly and repeatedly proclaimed, “From the beginning of the cases, I have fully cooperated with the Court in the earnest expectation that it afforded the best opportunity for me to clear my name… After my election, we have continued to fully cooperate… For 5 years I have strained to cooperate fully…”
Now Kenyatta says, he will not cooperate. He will have nothing to do with the ICC. As far as he (and his cabal on the AU executive council) is concerned, the ICC can go to…. He has strongly intimated he will be a no show for his trial in The Hague scheduled to begin on November 12. What happened?! The man who so tenaciously professes his innocence today and has been bragging about his full cooperation with the ICC for the past five years is trembling in cold sweat and having cold feet unable to stand tall and fight for his name, reputation and dignity against vile accusations! Kenyatta “doth protest too much, methinks”, to paraphrase Shakespeare.
Whose court is the ICC anyway?
Kenyatta, Hailemariam, Bashir and Co., would like us to believe the ICC is some vindictive and racist “white court” which gets “70 percent of its funds from the European Union”. Hailemariam made the bizarre accusation that the ICC is “race hunting” in Africa because “99%” of those it targeted for prosecution are Africans. (In 2010, Hailemariam’s party in Ethiopia won the parliamentary election by 99.6 per cent.) The facts speak otherwise. 34 of the 122 states (28 percent) that signed the Rome Statute, including Kenya, are Africans. Five of the Court’s 18 judges (28 percent) are African. The Court’s vice president, Sanji Mmasenono Monageng of Botswana, and the chief ICC prosecutor, Fatou Bensouda of Gambia, are distinguished African women who have achieved recognition for their expertise in international law.
Archbishop Desmond Tutu of South Africa unreservedly supports the ICC: “I have seen great gains made that protect the weak from the strong and give us all hope. The ICC is one of these beacons of hope.” Former U.N. Secretary General Kofi Anan of Ghana rejects the scurrilous accusations against the ICC: “I don’t share the view that the ICC is anti-African. The ICC is not putting Africa on trial. The ICC is fighting impunity and individuals who are accused of crimes.” The European Union may provide a large part of the ICC funding, but it is undeniable that a large part of the ICC is “owned” by Africans!
Appearance and reality: Is there sufficient evidence to bring Kenyatta and Co., to trial?
African leaders are masters of distraction and lords of deception. They are adept at using red herrings to deflect criticism and evade legitimate demands for accountability and transparency. They play our emotions like a cheap fiddle. They have little regard for our capacity to think and reason. They appeal to our sense of historical grievances by resurrecting ghosts of colonialists and imperialists past. They pander to our fears of neocolonial and neoliberal conspiracies. They try to sear our consciences with fabricated racial indignities invoking images of the “Great White Race Hunter” prowling in Africa. They exploit our natural sense of pity and compassion by depicting themselves as helpless victims and those they have victimized and the defenders of those they have victimized as wicked villains. They try to convince us that the ICC is coming after every African on the continent. In short, they treat us as though we collectively have the intelligence of an amoeba.
Emotional appeals may work on those who have not had the opportunity or interest to carefully examine the charges against Kenyatta. The record, however, must be set that the ICC charges against Kenyatta are neither frivolous nor trumped up!
Kenyatta is charged in an indictment filled with shocking testimonial evidence of criminal wrongdoing. Much of the testimonial evidence is independently corroborated and documented. The corroborated allegations are quite specific. For instance, the ICC Pre-Trial Chamber (the body that confirms charges upon which the Prosecutor intends to seek trial against the person charged) determined “there are substantial grounds to believe that on 3 January 2008 at the Nairobi Club… Mr. Kenyatta met with Mungiki members [sometimes referred to as the “Kenyan mafia”] and directed them to commit the crimes charged.” The testimonial evidence shows Kenyatta and others “agreed to pursue an organizational policy to keep the PNU [former president Kibaki’s Party of National Unity] in power through every means necessary, including orchestrating a police failure to prevent the commission of crimes”. The evidence shows Kenyatta and Co., “devised a common plan to commit widespread and systematic attacks against perceived ODM supporters by: (i) penalizing them through retaliatory attacks; and (ii) deliberately failing to take action to prevent or stop the retaliatory attacks”.
The evidence shows Kenyatta “taking the role of mediator between the PNU and the Mungiki criminal organization, facilitated a series of meetings from November 2007” in which “senior PNU government officials, politicians, businessmen and Mungiki leaders solicit[ed] the assistance of the Mungiki in supporting the government in the December 2007 elections”. In the post-election period, the evidence shows Kenyatta and others “facilitated the meetings with the Mungiki with a view to organizing retaliatory attacks against perceived ODM [Orange Democratic Movement] supporters in the Rift Valley [and] strengthen the PNU’s hold on power after the swearing in of the President”. The evidence shows Kenyatta and others “contributed to the implementation of the common plan, by securing the non-intervention of the Kenya Police and by failing to punish the main perpetrators of the attacks.”
The Pretrial Chamber II found sufficient evidence to conclude Kenyatta and Co., committed the alleged crimes and should stand trial. One need only read the exhaustive 155-page plus Decision on the Confirmation of Charges Pursuant to Article 61(7) (a) and (b) of the Rome Statute to appreciate the gravity of the allegations against Kenyatta and Co., and the meticulous and scrupulous approach taken by the ICC prosecutor and Pre-Trial Chamber to ensure respect for Kenyatta’s due process rights. We must not be swayed by the inflammatory emotional appeals of self-serving African snake oil salesmen.
Sleepless in Africa
It is not only Kenyatta but many other African “leaders” who are going sleepless every night afraid of having nightmares of Lady Justice and her posse in hot pursuit. Sundry African “leaders” are afflicted by “ICCnightmareitus” (a term I have coined to describe the nightmare experiences of African leaders who wake up at night in cold sweat biting their nails, scratching their heads and looking under their mattresses for the ICC prosecutor). Hailemariam Desalegn, the titular prime minister in Ethiopia, for the past year has been telling us that he is following the “vision” of his deceased “visionary leader”. Now we find out that his “vision” is actually a nightmare of a “Great White Hunter” “race hunting” him. Paul Kagame of Rwanda has nightmares of “imperialists” and “colonialists” returning to Africa disguised as judges and prosecutors to catch African leaders and put them in a chain gang. Omar Bashir of the Sudan is holed up in his palace having nightmares of prowling ICC boogeymen. Thabo Mbeki of South Africa is calling on African intellectuals to join him in warding off creeping “contemptuous” Western knaves and rascals skulking in the African night. Yoweri Museveni of Uganda, who in 2003 wholeheartedly referred the infamous Joseph Kony for International Criminal Court (ICC) prosecution, in 2013 is having nightmares about a “shallow” and “arrogant” ICC tracking down his fellow African leaders. Many other African leaders in quiet desperation face their own nightmares of an ICC grim reaper on horseback over the horizon; they are fearful they too may one day be held to account for their wanton crimes against humanity.
After more than 60 years of independence, African leaders should be talking about their dreams for Africa like Nelson Mandela: “I dream of an Africa which is in peace with itself.” It is painful to see them running scared from the nightmares of crimes they committed with impunity. But the real nightmare — the living nightmare — is unleashed on the African people. Beginning in 2003, Bashir in the Sudan relentlessly pursued a policy of genocide in the Darfur region which by U.N. estimate claimed over one-half million lives and displaced over 2.5 million people. In 2005, an official inquiry commission in Ethiopia determined that 193 unarmed protesters were massacred in post-election violence in May of that year and 763 suffered severe gunshot wounds (that was only a partial accounting). The previous year over 400 villagers were massacred in the Gambella region; and in 2008 thousands in the Ogaden region were maimed, killed and displaced by military action and indiscriminate bombings.
In 2007-2008, the U.N. estimated some 1,200 people died in Kenya in weeks of unrest between December 2007 and February 2008, and 600,000 people were forcibly displaced. Kenyatta says he is innocent of any criminal culpability in that violence; and he is innocent until the ICC prosecutor proves beyond a reasonable doubt that he did commit the alleged crimes against humanity.
In 2010, Cote d’Ivoire’s Laurent Gbagbo refused to leave office after his opponent was declared the winner in a runoff vote. Today Gbagbo is at The Hague awaiting his day in court. (When former president Gbagbo was bagged and tagged for the long trip to the Hague, the AU suddenly turned stone deaf-mute.) The U.N. estimated that 3,000 people were killed in Cote d’Ivoire’s postelection violence.
In 2011, Gadhafi ordered and organized the arrest, imprisonment, and killing of hundreds of civilians opposed to his regime in the initial days of the Libyan uprising. In 2012, separatist rebels and militias who took over northern Mali committed unspeakable war crimes and crimes against humanity. In 2013, in battles between the Rwandan-supported M23 rebel group and DR Congo troops, thousands of civilians were maimed, displaced and massacred in the eastern part of DR Congo. Such is the tip of the iceberg of the African nightmare!
African “leaders” want to end their nightmare by putting the ICC on trial in the court of world public opinion
The AU leadership has undertaken a clever strategy of ending their nightmare by putting the ICC on trial in the court of world public opinion. Imagine the criminals trying to prosecute the prosecutor and the judge! Have the inmates taken over the asylum in Africa?!
The AU’s public relations strategy is to depict the ICC as the judicial equivalent of America’s “Seal Team 6” or Britain’s “Special Air Service” – special forces that surreptitiously go into hostile countries to neutralize specific targets. That’s what Kenyatta meant when he said, “Western powers are the key drivers of the ICC process. They have used prosecutions as ruses and bait to pressure Kenyan leadership into adopting, or renouncing various positions.”
The charge of “dark forces” manipulating the ICC in Kenya makes absolutely no sense. Kenya is the darling of the West and the linchpin to its security structure in Africa be it against the threat of radical Islamist fundamentalist terrorism or piracy on the Indian Ocean. According to a 2013 study prepared for the U.S. Congress, “ U.S. foreign assistance to Kenya has reached almost $1 billion annually in recent years, and the country routinely ranks among the top ten U.S. aid recipients globally. U.S. assistance was estimated at over $900 million in FY2011, including over $200 million in food and other humanitarian aid. Kenya received more than $700 million in U.S. aid in FY2012—over $500 million in bilateral aid, including almost $8 million in Overseas Contingency Operations funds, and roughly $200 million in humanitarian aid, in addition to U.S. support for AMISOM troop contributors. The State Department has requested $564 million in non-emergency aid for FY2014; this figure does not include food aid or certain types of security assistance.”
Kenya is arguably the largest recipient of U.S. State Department Anti-Terrorism Assistance and has benefitted from millions of dollars in counterterrorism training, military equipment, and surveillance technology. The U.S. and Kenya have partnered in counterterrorism operations and intelligence sharing. Truth be told, the criticism has been that the U.S. by providing counterterrorism aid to Kenya has turned a blind eye, deaf ears and muted lips to human rights abuses in Kenya.
The European Commission has provided millions of dollars in aid to Kenya to improve democratic governance focusing on activities related to “anti-corruption, access to justice, elections and civic education, local governance and policy and legal reform, promotion and protection of human rights, public sector reform and institution and capacity-building.” Nairobi is the nerve center of much of the international community in Africa and hosts a variety of regional and international organizations. After New York and Geneva, the United Nations Office in Nairobi’s Gigiri district is said to be the largest UN regional center in the world.
How can Kenyatta say with a straight face that “Western powers have used prosecutions as ruses and bait to pressure Kenyan leadership into adopting, or renouncing various positions.” Let’s be honest! Could Kenya, Ethiopia, Uganda…. survive without alms from the West? Loans and credits from the wicked “neo-liberal” World Bank and International Monetary Fund? The great American “working man’s philosopher” Eric Hoffer said, “People who bite the hand that feeds them usually lick the boot that kicks them.”
Of course, no one at the AU summit talked about the living nightmares of the helpless, powerless and defenseless villagers in Darfur who to this day are chased by the “Janjawid” (“devils on horseback”) militia. No one at the AU talked about the nightmares of the survivors of war crimes in the Ogaden and Gambella regions in Ethiopia. No one talked about the crimes against humanity that are taking place in the DR Congo today. No one presented a status report on the effort to capture and bring to justice the notorious Joseph Kony in Uganda. Those who re-live daily the nightmare of murder, torture, mutilation, rape, pillage and plunder were not even mentioned in passing by Africa’s “leaders” at their Summit.
Truth be told, nightmares are not a monopoly of African “leaders”, victims and survivors. Those of us fortunate enough not to witness or experience the ghastly nightmares have nightmares about those nightmares. We have nightmares because we cannot bring ourselves to believe African political and rebel leaders are capable of such bottomless depravity and wanton cruelty. We find ourselves trapped in our own nightmare of indifference, the kind Elie Weisel, the holocaust survivor, wrote about in his book, “Night”: “Not far from us flames were leaping up from a ditch, gigantic flames…Babies! Yes, I saw it with my own eyes…I pinched my face. Was I still alive? Was I awake? I could not believe it. How could it be possible for them to burn people, children, and the world to keep silent? No, none of this could be true. It was a nightmare…”
How could it be possible for a million Rwandans to be wiped out in a few months in a genocide and the world to keep silent? Or one-half million Darfurians massacred and millions more displaced and the world to keep silent? Over 200 thousand Sierra Leoneans and Liberians mutilated and slaughtered and the world to keep silent? Over 50 thousand Equatorial Guineans abused and persecuted and the world to keep silent? Tens of thousands of Ethiopians tortured (this past week Human Rights Watch issued a 70-page report documenting serious human rights abuses, unlawful interrogation tactics, and poor detention conditions in one prison called Maekelawi) and massacred and the world to keep silent?
Elise Weisel taught us that “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.” That’s why we must speak up, and loud; protest, cry out and demonstrate. We must never, never back down from demanding justice for victims of injustice!
Deferral of ICC trial will not end the nightmare, it will prolong and make it stronger
Kenyatta does not want to face the music in the ICC. He wants to “defer” the court proceedings so that he and his deputy president Ruto can “fulfill their duties of running the country.” The AU and Kenyatta’s lawyers seek the dispensation of the U.N. Security Council and implore the Council to exercise its authority under Article 16 of the Rome Statute and grant a 12 month “deferral” with the possibility of additional deferrals. “Deferral” is another word for delay; and delay is the oldest trick in the book of defense lawyers. Passage of time favors the accused. Delay often wins criminal cases! Criminal defense lawyers live by the Code of the Three “D’s”: deny, delay, and defend. If a case is delayed, a lot of things can happen: witnesses relocate or die or are suborned to recant or give perjured testimony; witnesses’ memories fade and are unable to recall details; in high profile cases, public opinion can be manipulated and sympathy generated for the accused by mischaracterizing the charges as politically and racially motivated; a tough prosecutor could be replaced by a more lenient one, more inclined to settle the case or reduce or dismiss some charges.
It is supremely ironic that Kenyatta, the man who vociferously proclaims his innocence and takes pride in cooperating with the ICC, does not want a speedy trial; he wants a delayed trial, a deferred trial. I believe justice delayed is not only justice denied but also injustice prolonged. But I also know for some in the defense bar justice delayed is justice evaded, dodged!
To escape the nightmare of injustice, dream about justice
It will not be possible to end the nightmares of Kenyatta, Ruto and Bashir without simultaneously ending the nightmares of their victims. Their victims can only daydream about ending their nightmares in an open court of law where the facts and the truth about the post-2007 election are brought to light. Their nightmares will vanish when the light of truth shines on those who perpetrated atrocious crimes against them.
President Kenyatta: Your reputation, Sir! What about your reputation?!
President Kenyatta is alleged to be criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes of (1) murder (article 7(l)(a)); (2) deportation or forcible transfer (article 7(l)(d)); (3) rape (article 7(l)(g)); (4) persecution (articles 7(l)(h)); and (5) other inhumane acts (article 7(l)(k)). These are heinous accusation which must be swiftly confronted and laid to rest.
President Kenyatta proudly declared, “From the beginning of the cases, I have fully cooperated with the Court in the earnest expectation that it afforded the best opportunity for me to clear my name.” Now, President Kenyatta should heed young Cassio’s words in Shakespeare’s Othello, the tragic tale of an African general, smitten not only by love but also by racism in the Venetian Army. Cassio, a good, loyal and learned soldier, following a personal indiscretion frets about his good name. “Perplexed in the extreme” Cassio questions whether a man, without his reputation and his good name, is merely a beast: “Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!”
Mr. Kenyatta, what does it profit a man to be president when his reputation, his name — nay! the immortal part of himself, his soul — becomes the namesake for mass murder, mass deportation, mass rape and mass persecution? What remains of such a man, Mr. President?
Humanity before sovereignty!
Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a practicing defense lawyer.
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ALEMAYEHU G MARIAM