By Dr. David Nyekorach Matsanga in Nairobi, Kenya.

 I am one of those who have tried to  expose the double standards of Moreno Ocampo on the cases of Africa. I have since 2004 when the first indictment in Africa occurred  and since the formation of ICC 1998. As it stands today I am very vindicated by the move made by AU in trying to swim the crocodile infected waters of international conspiracy and relations. The ICC debacle has overburdened the fragile  government of Kenya  since Dr. Kofi Annan mediated a settlement in 2008.  

We have seen many scholars and many commentators misinform the public in Kenya and the world at large that the deferral of the Kenya case will not be successful at the UN Security Council under Articles 16, and Under chapter VII of the Charter , Articles 39, 40. These misguided scholars and politicians who had hanged on the luck of  trial of the six Kenyans as rebirth of their political fortunes in Kenya have continued to peddle lies and confusion on the subject that needs intelligent minds to dissect.

First I read The Standard news paper of Kenya on the ICC under Article authored or reported by Alex Ndegwa, and John Oywa titled “AU asks UN to defer Kenya’s ICC cases” I will not take on the many contents that surrounds the article but I will in particular touch on the matter raised by my learned friend and Associate Professor from South Africa  Max du Plessis  in his comments pasted on ISS (Institute for Security  Studies) where the authored as  research associate of the ISS and was ably quoted and being used by the people in the press as final authority on the matter of deferral under Article 16.

Max du Plessis whom I respect academically and whose writings on Zimbabwe , have made me more of hero in that country is  more of the radical minds that think that Africa cannot stand on its own. Ordinarily having been one of those whose ambition is to dismember Africa through international NGO syndrome and money  that failed   during  the  Apartheid era in South Africa, is not aware that the framers of the Rome Statute of 1998 inserted Article 16 as a check on the excessive powers of the Chief Prosecutor and the Pre- Trial Chambers 1 and 2 of ICC.

The Article 16 is a “safe guard” of 1998 Rome Statute  against lone rangers like Moreno Ocampo who come to Africa and pick few black faces and display them to international laboratory on injustice. Prof. Max du Plessis plays in the hands of those in Kenya whose dwarf knowledge on international interpretations could cause conflict in Kenya again. All these NGOs forget one cardinal principal that retributive Justice creates another conflict. Whenever an institution leans injustices that  add agony to the situation in any particular case, victims suffer much longer.  So Africa needs restorative justice like that of South Africa where Apartheid operators sharing the same cake of freedom with the ones they tormented .

Prof. Max du Plessis in his Article as quoted by The Standard Newspaper of Kenya  that the African Union  (AU)resolution for deferral was done in bad law. One is bound to ask which law Article 15 was invoked on by Moreno Ocampo. Was it good law or bad same law of ICC?  Indicating that African Union members that include South Africa were not aware that Kenya is a frontline state neighbor Somalia and Sudan that have fragile governments. 
The AU resolution is the result of a catalogue of errors in the Ocampo case of  Kenya  that included a bungled investigation, the political publicity of the case, and the incompetence of the chief Prosecutor.  These errors could spark violence and could lead to insecurity in the region. So Prof. Max du Plessis analysis is flawed in its entirety and in its interpretation of Article 16. The political conduct of the case that could spark violence again in Kenya is what is at the centre of the Ocampo case. This  has compelled AU to seek a deferral.  Any ordinary Kenyan and most people in the world who have the case of Kenya will agree that proper investigations were not done but Moreno Ocampo men just pasted evidence that could spark insecurity – hence a deferral for 12 months would increase the credibility of ICC and help Kenya to be prepared to arrest and charge those implicated in the PEV with new powers of the constitution . Deferral does not mean the end case  it’s a mere suspension of the case in the interest of peace. If Security Council does not  grant a deferral it would injustice to the victims who want justice however much it is delayed. Second World War criminals are being charged and looked for today why do rush at the cost of heavy penalties in the future on Kenya?

Secondly the AU resolution looked at the general Security concerns in the Eastern Africa and the Central Africa where Al- Qaeda have infiltrated Somalia and are causing insecurity that could spread into Kenya if the Kenyan government was not give enough time to implement and put in place laws that prevent insecurity from occurring in Kenya. The Sudan referendum places a burden on Kenya that negotiated an agreement that has led to the current situation in Sudan. The threats of war loom around Abyei  region of Sudan and Kenyan  government political officials will be much needed in making sure that  peace prevails and there is no spill over politics into Kenya.

Those spreading and peddling lies about Article 16 and deferral at the UN Security Council should understand that the UN Security Council P5 members  know the difficulties that Kenya is having in implementing its constitution. The fragile grand coalition that is being battered by internal and external enemies could breakdown due to the pressure and the overburdened responsibilities of ICC on Kenya. Therefore AU has weighed all these possibilities as stipulated in UN Charter Chapter VI, Article 39, 40 whose centre thread is “a threat to peace” and have come to conclusion that further investigations or further proceedings at any level in the ICC would trigger a crisis in Kenya. Ocampo’s bungled investigations are now a threat to peace in the region. If UN Security council allows them to go on then there is a likely scenario that they could plunge Kenya into further violence.

When UN Security Council decides to invoke Article 16 and Chapter VII they look at all possibilities of the time frame in which the case will take. The Kenya case might not be finished by 2012 and Kenya is trying to finalize and implement the constitution so that there is no repeat of violence that rocked this country of Kenya in 2007-2008. If the laws in Kenya are not put in place before the next elections, then there will be a repeat of violence which the Security Council will consider carefully when accepting deferral of the case for 12 months.

The question of suspects, their, credibility, status that makes it possible for bail to be granted if the ICC summons are issued. Hon Uhuru Kenyatta, Hon. William Ruto, Amb.  Francis Muthaura , Hon. Henry  Kosgey , Maj General Hussein and Sang are not warlords or armed men in battle field who might disappear like Kony Bemba or Thomas Lumbaga once released on bail if the case goes beyond Pre- Trial  Chamber 2  .  This is a factor that influences the minds of Security Council. Will there absence create more chaos in Kenya, certainly yes because the investigations were bungled by the Chief Prosecutor Moreno Ocampo . So to stop ICC from collapse the  UN must invoke Article 16 to avoid the walk out by African nations using Article 127 of the Rome Statute.

The world must remember that the above named   are citizens of Kenya who have served this country tirelessly and no court in the world would reject their bail application whatever conditions attached to such a bail. The UN Security council knows that these cases will finally be disposed in or about 2013- 2014 if judges in Pr- Trial Chamber 2 decide to issue summons .Therefore a deferral for 12 months under Article 16 in order for Kenya to finalize its reforms in Judiciary and other institutions of law  is not a hard demand for UN to refuse.

Prof. Max du Plessis touched or was quoted by  “The Standard newspaper on 3rd January 2011” that a pattern of political patronage had grown in the AU where the elite have used political routes to protect their own. It is sad that my fellow  taught  friend Max did not look at the political nature that the Chief Prosecutor has turned the court into. All the cases that he has taken to The Hague have been politically motivated by political decisions and statements made personally by the Chief Prosecutor Moreno Ocampo.

Take for example the case of Kenya where Ocampo said he would use Kenya  not as an example against impunity in the world but he would use Kenya as an example for the rest of the world to stop impunity. Leaving Ocampo’s misgivings and  failures aside we all know that ICC is a good institution of international law but it has turned itself into political institution of  scoring selective justice to Africans and not to other nations that commit war crimes. Does Prof. Max du Plessis call this a good law or a bad law? It looks like Prof Max du Plessis is aware that the court was created for black Africans on this continent !

The UN Security Council when discussing  the Kenyan case will look at how Article 15 was used by Ocampo and the implications of self referral as opposed by a referral by a member state of ICC. The case “of Uganda of LRA Kony and others was a referral from Uganda” because Kony was not reachable by the state of Uganda. But the Kenyan case is different where a” self referral “was applied by the Chief Prosecutor. It must be checked by a supreme Article 16 of Rome Statute suspension where conflicting positions could spark a war or further conflict in Kenya. It does not say at what stage but it comes in even at this stage where Judges can be stopped.

Therefore for those who are blinded by international NGO syndrome that eats Africa and makes sensible men like Prof. Max du Plessis speak on behalf of NGO agenda in order to eat the funding from such satellite agencies like ICC and other NGOs in Kenya  which represent merchants of conflict in Africa must understand that at the moment conditions in Kenya are not favorable for any trial or indictment since the case was left too late ?  Any action towards arrests and indictment in Kenya case would lead to thresh chaos where peace had returned. Given the African ethnic division in Kenya where the accused come from the bigger tribes there is bound to be serious implications if the UN Security Council does not deferral the case to avoid  unrest. I  maintain that :

  1. Whichever way the deferral will go at the UN the Kenya case has sounded a death nail in the coffin of ICC and Chief Prosecutor Moreno Ocampo. It is the second time Africa has asked for a deferral and if the Kenya deferral is refused by the UN Security Council , there is a possibility that AU will  cut off all ties of cooperation with the ICC and it walk en mass from the ICC outfit. The UN Security council does not want to risk the type of  lawlessness in Africa so it will try to preserve the institution of ICC by face saving it and allowing the deferral for 12 months and get a new Chief Prosecutor probably Hon. Mutual  Kenyan Minister who according to sources in ICC  has lobbied so hard to take over from Moreno Ocampo after April 2011.
  2. The UN Security Council will consider the “deadline approach”  by the Chief Prosecutor that might cause conflict where victims will be hurt twice by hurried investigations and prosecutions of the Kenya case. Peace on the ground has grown and no one wants to upset the balance that we see in the Kenya Rift Valley today. This cannot be done because of the panicking of Chief Prosecutor in rushing the ICC trials without proper investigations. “The UN will look at Kenya’s redemption Strategy” that has worked in terms of healing the wounds, Truth and Reconciliation efforts, and finally the creation of a Local Mechanisms that will help once a deferral is done.

We believe the likes of Prof. Max du Plessis whose brief is to distort anything that Africa does will learn from this position and the end result will be-  ICC  WILL DIE.  It has no life line left to remedy itself  in Africa from the self destruction caused by Moreno Ocampo.  If I am wrong let us see after the ruling on the deferral.




About me

Name:David Nyekorach - Matsanga (PhD)
Work: Publisher, Owner, Chairman of Africa World Media Ltd Specialist: Political Science, African History, Governance, Democrary, Great Lakes Region, Conflict Resolution, Media Impact on Africa, International Management and Lobby work
Location: London, Surrey UK

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