KENYAN CASES AT THE ICC AND FLAWED ACTIONS OF THE CHIEF PROSECUTOR

Wednesday, 23.11.2011 Nairobi, Kenya  Category: Media    17 comments

 
Dr. A.Rose Migiro: UN Deputy Secretary General

Dr. A.Rose Migiro

Deputy UN Secretary General United Nations Headquarters New York
USA

4TH November 2011

 

Your Excellency,

RE: KENYAN CASES AT THE ICC AND FLAWED ACTIONS OF THE CHIEF PROSECUTOR

Allow me to thank you for the tenacity and steadfastness in which you have handled your portfolio as one of the few African women in international waters of politics and diplomacy. My recent telephone and physical contacts with your field officers on the above matter has now energized me to write this letter to you.

I refer to the above matter which I have followed and researched on since 2007- 2008 (the period of PEV Kenya). I want to state that I suffer from a great deficiency that I am not a lawyer  by profession; however I took a decision to confront Luis Moreno Ocampo because I consider the future of Africa and international law. As an Africa I have an obligation to use the enormous talent  that I have to defend the inalienable right of the people of Africa  to self determination and thus affirm  the inviolability of an important principle of international standards that are being flouted by the chief prosecutor of ICC.

Madam DSG, I have also researched and followed Luis Moreno Ocampo since 2005 on the first case in Uganda and many other African situations that have come under the microscope of international law. I don't hold brief for the Kenyan government but I act as independent international watchman like any other  agencies that  have equally  raised their  concerns on the  conduct and behavior  of  Moreno Ocampo on African cases before the ICC.I have acted in an equal measure to give a dose to those NGOS that just hate government of Kenya and for the sake of politics hate suspects in the Kenyan cases. These

NGOs have rooted several petitions in favour of the ICC cases and in support of confirmation of Kenyan case to a full trial. I equally  voluntarily lobby for the suspects who might see a miscarriage of justice if these cases of Kenya go for a full trial next year 2012.

Madam DSG, the confirmation hearings of the Kenyan cases ended in September 2011despite our outcry about the flawed investigations and disrespect of procedure of international benchmarks. The Pre- trial Chamber 2 did not receive exculpatory evidence against the suspects as stipulated by the Rome statute of 1998 of which international justice hinges its  benchmarks. The court  received comedy stories and political  hearsay based on flawed  investigations that  were conducted by the Chief Prosecutor.

The prosecution  contrary to Article 61(7) which is very clear did not follow  the guidelines and the Judges at the Pre- trial chamber 2 allowed this to happen in an international court under the watch of  UN supervision that  falls under  your  docket. That is why I am raising serious concerns of miscarriage of international justice for both victims and suspects.

The Court  allowed the  Chief Prosecutor Moreno  Ocampo to  engage the  world  court  on "reasonable grounds" that will engulf the ICC as an institution of international  justice into an inferno  of miscarriage of  the same justice if the Kenyan case goes for a full trial.   It is very unfortunate that international taxpayer's money was spent on a bungled Kenyan case that was presented to the court as a result of political pressure of Dr. Kofi Annan and several NGOs that have vested political interests in Kenya's future  political landscape (I have enclosed herewith list  of  NGOs for  your  records).  I believe the  Chief Prosecutor's  duty  is  not  only to  secure conviction by hook or crook but to safe guard the integrity  of ICC as a court and international justice of both suspects and victims.

The Chief Prosecutor failed to assist the court by leaving out a junk of exculpatory evidence that lies in public domain in Kenya today. By doing so he killed the court's image, killed the victims twice,and further more killed the careers of suspects based on flawed investigations. The truth stands that  Kenya lost over 1300  citizens that perished in PEV that  was triggered by political dynamics of that nation after the 2007 General Elections. The losers of this election decided not to

Madam DSG, Kenya stands at crossroads today. The fragile grand coalition Government of Kenya has a heavy political burden on their shoulders as I write to you.

Kenya is fighting AI- shabaab which has threatened international and regional peace in the region of East, Central and the Horn of Africa. That role should have been done by the UN Security Council that has members that were part of the conflict that started in 1991in Somalia.

Secondly, Kenya is battling with implementation of its Agenda 5 of the mediated agreement of 2008 constitutional reforms which must be completed urgently in order to streamline its social, economic and political institutions. The same mediator Dr. Kofi Annan who was recognized by UN is aware that the country needs these reforms in order to move forward. This is a crucial election that will determine the governance strata of this nation.

Thirdly Kenya as nation is gearing towards a General Election in 2012 which by virtue of the new constitution was to be held in August 2012 but due to a number of logistical problems dates are being floated for December 2012. This is a crucial election that will determine the governance strata of this nation. Kenya must lay down proper and firm foundation for such an election without interference of other outside matters like the ICC intrusion through the Chief Prosecutor that could torpedo much gained reforms and lead this country into another lawless situation similar to that of 2007-2008

Fourth, is the level of apprehension and internal political squabbles and rivalry that the ICC matter has created in Kenya that could turn into ,a self-made serious conflict" if a full trial is sanctioned by the Pre- trial Chamber 2 in January 2012. I don't personally envisage an international court of the ICC status to hand a full trial in legal terms based on flawed investigations but I have observed the nature of political underhand by some countries in Europe and USA that fund ICC operations interfering with the legal route. This is very dangerous for universal adherence to and implementation of international at both national and international levels.

Fifth, are the polarized emotions that I have noticed in Kenya about ICC debate that could affect the nation's security and its security organs. For Kenya to keep watch on all the incursions of ICC outreach missions into Kenya and at the same time watch over the incursions of AI- Shabaab is courting political disaster that will impact on international peace in the region. Tension will rise if the Pre- trial Chamber 2 confirms the Charges and decided to send this case for a full trial. Kenya will not cope with all these events in the same year 2012.

Madam DSG, the above factors are at play in Kenyan body politics and could threaten peace in the region and lead to an international ceiling where the UN will be forced to come in yet the framers of the Rome Statutes in 1998 envisaged that such scenarios would appear in future and hence Article 16 of the Rome Statute that spells out what could be done in case of the Chief Prosecutor overstepping his mandate which might trigger a conflict

Madam DSG, the UN Security Council under Article 16,of the Rome Statute of 1998,has a clear mandate to cut short the life of a bungled investigation like that of Moreno Ocampo in Kenya situation. The reasons of cutting short or suspending the ICC investigations for 12 months are very much written on the wall in the Kenyan situation.

The investigations themselves have turned into a threat to peace since the chief prosecutor went into a political direction by naming suspects on the basis of ODM and PNU parties that are not rebel outfits but political parties of the people of Kenya. The Chief Prosecutor avoided a legal route and played to the international political gallery and pressure from ICC funders where he brought mere actors and not script writers in his comedy case before the ICC.

There could be more political mayhem if Kenyan cases go to a full trial based on the manner in which they were investigated by the chief Prosecutor whose office falls under your docket directly. Impunity in Kenya cannot be solved by using flawed investigations of Moreno Ocampo but through wider alternative justice mechanisms like setting up special courts in Kenya during the ongoing process of constitutional implementation.

Kenya can go through this transition peacefully if there is a suspension of the ICC Investigations and proceedings into the Kenyan situation for the next 12 months (deferral) under Article 16 which can be reviewed by UN Security Council once the conditions on ground have changed.

Madam DSG, under the UN Charter, Chapter VII of the UN Security Council Articles 39, 40, what constitutes a threat to peace is on ground in Kenya and around Kenya. The Ocampo flawed investigations could threaten regional and international peace. At the same time the menace of fighting AI- Shabaab that has encroached on the functions of the state of Kenya and that of the Kenyan government and to give more inroads to the Chief Prosecutor into Kenya given his past flawed investigations could spark a new conflict and probably worse than that of 2007-2008. ICC incursions into Kenya now or in 2012 could make the best ingredients of conflict very real in Kenya terms. That is why my requests to seek your intervention on the ICC chief Prosecutor's conduct and save the ICC from losing credibility as an international court of justice.

It is very evident that the cases that ICC handles come as a result of changing political dispensation on the African continent and it is prudent that the UN Security Council as a body can decide the fate of such political inflamed cases under Article 16 and under the UN Charter of Chapter VII. Kenya now faces those dangers as a result of the ICC poor intervention into the Kenya and therefore qualifies to have measures of suspension for 12 months (deferral) given that the country needs to refocus on fighting AI-shabaab and at the same time keep vigil about its internal security that is being threatened by ICC inflamed pronouncements, flawed incursions and debate on flawed investigations that were hurriedly done by Chief Prosecutor of ICC in the last 3 years.

Madam DSG, few months ago this request would have been impossible because USA, France, Britain, and other nations on the UN Security Council were opposed to the suspension because they wanted a full court journey by Kenya to the ICC. USA, France, Britain were informed that this would be the best route for the Kenyan case. But today this full journey in the court has several potholes of injustices and likely to spark fresh chaos that could cause political ramifications for Kenya and the international community at large.

Madam DSG, the same countries that threatened to Veto Kenya's request for deferral of ICC actions under Article 16 and UN Charter Chapter VII for 12 months (deferral) are aware of the challenges that Kenyan cases have created on the ground. The same countries now are equally involved in the current efforts to avert a regional threat caused by the Somalia conflict and would be naive for them to stop any methods that can help Kenya to resolve both internal and external threats. Deferring the case or suspending the cases for 12 months (deferral) does not mean forgetting injustice committed in Kenya. But international law under the UN Charter looks at the timing and security threats that take the fast track under Article 16 of the Rome Statute. Kenya fits this direction.

 

REPORTING OCAMPO TO UN FOR INVESTIGATIONS:

Madam DSG, this letter also serves as an initial complaint to you on the conduct of Ocampo. 1 request through you to the UN under your docket as Deputy Secretary General of UN to institute an internal commission of inquiry or request the UNSC to constitute a UN Panel of Experts to investigate the conduct of the Chief Prosecutor Luis Moreno Ocampo on all the African cases that he has handled before he leaves office next April 2012. The gaps of injustices, the flawed investigations, the corruption scandals, the misuse of office, the misappropriation of taxpayers' money, abuse of office, sexual abuse and other molestation of staff by chief Prosecutor and political connivance with some party states to bring ICC into disrepute, have to be investigated in order to bring sanity in the office of the Chief Prosecutor of internal institution like ICC.

(Attached in a report on admission that there is political pressure by some countries)

The documents that I attach will explain all African cases that were mishandled by Ocampo in the 9 years as Chief Prosecutor. I have added to many silent voices that have wished to see justice prevail by curtailing Moreno Ocampo's powers.

Madam DSG,I independently submit that the Kenyan situation falls under both Article 16 and Chapter VII of the UN Charter that are spelt by the framers of these international documents and must be implemented to save ICC from extinction on the African continent because of the manner and conduct of Chief Prosecutor. The chief Prosecutor whose mindset is littered with false premise of leaving a legacy using Kenyan case sets a dangerous precedent for a new prosecutor who will take over at the helm of ICC Chief Prosecutor's office. Kenya's case and all investigations MUST come to a halt for 12 months to allow this country to attend to the matters of regional peace that threaten the Kenya state. ICC investigations and continued incursions of the Chief Prosecutor has become a threat to peace.

Hoping that this letter works both as a petition and lobby letter and hoping that an open reply to the matter will forge a way forward for the precarious journey that Kenya faces today.

I remain,

Yours truly,

DAVID NYEKORACH- MATSANGA (PhD)
Chairman / CEO
AFRICAWORLD MEDIA LTD London
AFRICA WORLD MEDIA (Kenya) LTD
www.africaworldmedia.com.  +44(0)7930901252

 

c.c

1.

President Kikaya Kikwete of Tanzania.

 

2.

Government of Kenya

 

3.

HE Dr. Ruhakana Rugunda of Uganda{ for  President Museveni)

 

4.

Defence lawyers and suspects on the ICC list.

 

5.

The NGOS enclosed in my letter.


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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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