OPEN LETTER TO ICC CHAMBER JUDGES

Wednesday, 28.09.2011 Nairobi, Kenya  Category: Media    1 comments

 

Photo Source: AP

                                                    OPEN LETTER

The Presiding Judges of the Pre-Trial Chamber II
Judge EkaterinaTredaflova
Judge Hans- Peter Kaul
Judge Cuno Tarfusser.
The Hague

 

My Lordships the Judges,

REF: FLAWED INVESTIGATIONS COULD LEAD TO FLAWED JUSTICE FOR BOTH VICTIMS AND ALLEGED PEV SUSPECTS OF 2007-2008.

My Lordships, allow me on behalf of (AWM) thank you for the tenacity and steadfastness that you have shown when handling Chief Prosecutor’s case against 6 Kenyans regarding .the post –election crisis in Kenya (PEV). The Kenyan case which is undergoing confirmation hearings opens a Pandora box and litany of flawed investigation and concoctions which could erode the credibility of the International Criminal court ICC.

This case is being beamed by television worldwide for all people to see and state their thoughts. The world knows that there is something wrong with the Chief Prosecutor’s evidence. In invoking Article 15 of the Rome Statute of 1998 the Chief Prosecutor was under obligation to do a thorough investigation into the Kenyan situation.  I am not asking for amicus curiae application but just to understand how the rules of flawed evidence could affect the overall case. I want to loud your collective energy and responsibility exhibited while handling such a case where investigations were totally flawed and fiction was brought to court by the Chief Prosecutor Mr. Moreno Ocampo.

My Lordships, you rightly used the rules 50(4) of Rules of Procedure and Evidence in requesting the Chief Prosecutor for further and thorough information so as to determine whether to confirm or decline to do so. In your ruling by majority for summons to appear two of you my lordships( Judges) had many doubts but nevertheless wanted to clear your conscience and wanted the Chief Prosecutor to further bring concrete evidence that makes a threshold and meets merits of  international criminal court (ICC).

 Like many cases on African continent the Chief Prosecutor has acted blindly or underrated the merits of international standards.  The chief Prosecutor has flawed many investigations which is a total miscarriage of Justice and kills the credibility of the credible international institution like ICC.

 As independent observers we are very worried about the type of flawed evidence and information that Mr. Moreno Ocampo has brought to the court and yet the Pre- Trial Chamber 2 is still up to this stage wanting to listen to a bungled investigation to make a ruling to confirmation for full trial or decline the to do so. 

My Lordships. We are not querying the decisions that the Pre- Trial Chamber 2 might make or the integrity of the Pre- trial Chamber 2 because we don’t know what you will decide. But we are querying the tactics used by the Chief Prosecutor which might affect the outcome of the case and justice. The Chief prosecutor has thrown out the broader strategy of the framers of ICC Treaty and statute of 1998 and resorted to fiction that does not add up.  In allowing an international court to be fed on a pack of lies packaged from a restaurant in Kenya the Chief prosecutor is equally dented the image and name of a good institution of justice in the world.

The Chief Prosecutor lied to   the Pre- Trial Chamber when invoking Article 15 to investigate cases of Crimes against Humanity in Kenya. The same thread of flawed investigations with no threshold is in the case up to now. The Pre- Trial Chamber 2 as custodian of international justice must examine themselves as to whether to use flawed investigations to implicate suspects in the case or to seek further thresh evidence from the chief Prosecutor in order to determine the way forward on this case.

My Lordships, it is also for the interest of international taxpayers who contribute to this court to know how the Chief Prosecutor whether a forensic investigation was done or the chief prosecutor spent over 4 million dollars to cut and paste documents and place garbage before the court of high international reputation like the ICC. It is now clear that most of the evidence and information that the Chief Prosecutor used on 26th November 2009 to invoke article 15 of the Rome statute of 1998 were based on a Commission of Inquiry Report of Justice Waki and KNCHR and now the same old and flawed evidence has been implanted in all two cases before you for confirmation hearing.

My Lordships,  the Chief Prosecutor armed with flawed evidence and with no specific collaborative evidence has lured this noble court of Pre- Trial Chamber 2 to a trap where the credibility of the Court will be dented if international standards are flawed and the legal route of   interpretation is failed. The Statements before you in Pre- Trial Chamber 2 are therefore sexed, doctored, to earn a confirmation and full trial in this court.  Confirmation of this case will have double tragedy for those alleged to have committed the crimes and for victims of the senseless killings that took place in Kenya 2007-2008.

My Lordships, even if the Chief Prosecutor Mr. Moreno Ocampo in future presents the second thought evidence and information that will be  specifically pointing  out    who , when. How, why, and with what means, the acts were committed by the specific individuals Justice will be dealt a blow because he would already flawed initial investigations. Justice will denied to both sides (accused and Victims) because of the gravity of errors made by investigators of ICC under the Chief Prosecutor’s office were gross and offer ridicule and mockery of international standards.

 My Lordships, under the Rome statute Article 7(2) the purpose of sections (a-I) of crimes against humanity which speak volumes were not specifically told to you in the first place on 26th November 2009. It is now   clear that specific people who directed the operation are not the ones in the court because all facts have been confused and tainted or coated with lies.

The Court is being fed on a comedy and drama on simple rules of investigation which the Chief Prosecutor failed to follow.  I personally believe that the   Chief Prosecutor was obsessed with too many powers and acted on deadline politics using a timetable of any human being whose term ends next year in April 2012 that has flawed the entire process.

My Lordships, I was a Sky News Consultant based in Africa. And Nairobi was my hub of operations during the time of turmoil in Kenya in 2007- 2008. I have attached Sky News Video footage for the Pre- Trial Chamber 2 to see. In future I intend to question through the forum of member states as to why the Chief Prosecutor was single handedly given more powers to decide on whom to dish warrants.  I intend to seek a commission of inquiry into the Chief Prosecutor’s conduct as to why flawed investigations were allowed to proceed in this case. I will also take up in future with the UN Security Council as to why only   African countries are under the microscope of international courts and why Mr. Moreno Ocampo wants to dismember Kenya as new victim of international conspiracy.  

My Lordships, there is also the second question of admissibility under Article 17 of the Rome Statute   which the Chief Prosecutor Mr. Moreno Ocampo ignored or was wrongly interpreted under the paragraph 10 of the Preamble of the Rome statute of 1998 (I refer Your Lordships to Article 17 (refer to sections (a, and d).They are clear and it is clear the Chief Prosecutor flawed all rules of evidence and Procedure 

My Lordship, under the same Article 17 (3) the Chief Prosecutor did not justify as to why he should have used Article 15. He did not prove beyond reasonable doubt to the Pre-Trial Chamber that Kenya as a country had failed to implement the complimentrity law. Kenya is and was not failed state. This could have acted as a catalyst for him to invoke Article 15of the Rome Statute of 1998.

My Lordship, the burden of proof lies in the hands of the Chief Prosecutor Mr. Moreno Ocampo to prove to the ICC and Pre- Trial Chamber 2 that Kenya is failed state. It is upon the Pre- Trial Chamber 2 to interpret to the international tax payer what a failed state is. This is crux of the matter that stands clear. On top of the forensic information and evidence required from the Chief Prosecutor, the court must look at the merits of the case before them carefully. The flawed manner in investigations in the Kenya case leads to miscarriage of justice and any person in the world can make conclusion looking at the fiction from the prosecution.

My Lordships, I am aware that   part of the work of ICC is to a stop and deters further occurrences of violence in many countries on t Planet earth. But to do that on flimsy grounds that erodes the credibility of a good court like ICC is a travesty of justice.  In Kenya today peace has returned which was ushered in by the Dr. Kofi Annan Accord that we all welcomed as timely and workable document.  

 My Lordship,   I am an East African and an African who shares many things with Kenyans and Sudanese who bear the brunt of ICC actions on their countries. Above all I share a common border with Kenya. What kills Kenya kills my country Uganda. If Kenyans have refused to remind you of severe consequences that the Chief Prosecutor of ICC will bring by flawed investigations I have decided to alert you on the same.

 My lordships I don’t hold brief the government of Kenya but I see the type destruction that ocampo has placed on the institutions in Kenya by these flawed investigations. The thrust of contention in the Kenyan case is that:

  1. All investigations were flawed; suspects and victims were not interviewed. Many victims were left out like Mombasa. The number of dead in Molo had 94 that include 54 Kikuyu, 50 Kikuyu died in Naivasha; the evidence of the prosecutor says different things.
  2. The current case of Kenya does not reach ICC threshold,  the organizational structures of ODM in case I of Kenya were not mentioned at all but in case 2 the Chief Prosecutor puts the national institutions at trial. The mention of state house as hub of illegal activities invites political connotation that does not go well with the case.
  3. The Mungiki was and is still a proscribed organization in Kenya and the GOK has never changed this position on Mungiki and how they could cooperate with Mungiki is questionable.
  4. International standards of witnessing has been flawed and confessed criminals like the Mungiki criminals have been brought in court to testify against Government officials who were supposed to keep law and order.
  5. The most clouded scenario is that who is on trial here, the flawed investigations don’t show us who exactly is on trial. Is it the state House of the Republic of Kenya, is it the Government of Kenya, Is it Mungiki, is it PNU or is it the suspects. Again the Chief Prosecutor in his flawed investigations does not specify to the Pre- Trial Chamber 2 who is on trial, the said suspects or Kenyan institution or GOK.
  1. The ICC should investigate serious allegations that $4 million dollars were used on the Kenyan investigations and investigators only spent 14 days in a country in places like Eldoret. Nakuru, Naivasha, Turbo, Mombasa, Kisumu, and Nairobi. They spent time visiting the zoo, meeting serial activists and talking to fake witnesses and victims and bungled the case. This was not good use of international tax payer’s money. Does the court want to equate the evidence of confessed killers and habitual criminals to the high integrity of the persons on the suspect list like UHURU , Ali, Muthaura, and those in case one like Rut, Kasey and Sang?      

 

These are my own feelings not those of Government the Government of Kenya. The Chief Prosecutor succeeds in getting authorization to open prorio motu in Kenyan case to get real evidence not fake items to the court. The level of flawed investigations should be brought out to the international community so that world knows how another institution will be dented by flawed investigations.  I want to be among millions in Africa who want to challenge the sole authority of Chief Prosecutor who acted beyond God’s comprehension in all cases from Africa he has brought before the ICC court.

My Lordships, the current flawed actions initiated by the Chief Prosecutor against key suspects from a 50% of the population of Kenya might bring more conflict than stopping any further violence in Kenya.   The peace accord that was molded in 2008 will be dented by the very actions of Chief Prosecutor of the ICC. The ICC factors have put this country at political crossroads. Some of the political actions directed against Kenya especially by the Chief prosecutor’s flawed investigations and the Government of USA are fueling mistrust and frustrating the road map to transparency

My Lordships, I believe that most African states have both de jure impunity that leads to defacto impunity created by outside western institutions that fuel the conflicts on the continent. The Kenyan conflict was fueled by American citizens namely Mr. George Soro and Mr. .Dick Morris both working for outside institutions of the USA government.  The ICC statute of 1998 was rejected by the USA because the USA had a feeling that it overrides and erodes the interests of their country. That is why the Government of the USA up to now has not signed and ratified the Rome Statute of 1998 that brought in the ICC in Rome. It is now clear that if this case moves further than this stage on flawed investigations, the political hand of the USA would be noticed by many Kenyans and this could bring chaos.

My Lordship, what is shocking humanity is the way the Chief prosecutor is seeking legitimacy and legacy by using a flawed Kenyan case. Previous conflicts that manifested into chaos under the guidance of the Chief Prosecutor are many in Africa.   Africans are wondering whether Chief Prosecutor Moreno Ocampo wants to prove to the world that ICC as an organization can push Kenya to edge of disaster like the previous cases which have been handled by him.

The USA is at the fore front of ordering African governments to adhere to the principles of the 1998 Rome statute. But the same USA rejected to sign and ratify the treaty claiming that the ICC had no qualifications of policing human rights and abuses in the world.

The creation of ICC in 1998 has brought in one powerful man Mr. Moreno Ocampo who has used or misused this court to ferment more political chaos in most African countries where he has stepped. The example of Sudan, Uganda and DRC where the Chief prosecutor of ICC interference has killed the entire peace processes of Darfur, DRC Thomas Lubanga case respectively.

My Lordship, I again maintain and know   that the global village does not condone impunity and does not allow any human rights abuses to go unpunished. But there is a danger of over playing and over politicizing the events of the   Post Election – violence (PEV) in Kenya.  I am afraid it might derail the same reforms that we want to happen in Kenya.  The agitated flawed actions by ICC Moreno Ocampo to this East African nation might create further violence that will dismember the Kenyan nation in 2012 elections.  

My Lordships the Kenyan government and its people endured the wrath of Post Election violence (PEV) that Dr.Kofi Annan helped to put an end to in 2008. But what surprised many African and  international scholars is the way the world has failed to give enough healing time for the same Grand Coalition Government to re-strategize and deliver the much talked about reforms without plunging it into another inferno. The manner in which a conflict was resolved in Kenya is questionable give that it was resolved by using the left hand while destroying the same ACCORD with the left hand!

In short My Lordships, Dr. Kofi Anann killed the baby by allowing Mr. Ocampo to put Kenya on trial through a smuggle4d envelope to the ICC institutions.  Kenyans will remember the ICC for the helping them to cross from Egypt but left them in wildness Sinai and allowed imperial organs to eat them alive.

My Lordships, the Serena Accord which is unique in African politics might turn into a political deathbed with never ending inferno for the Government of Kenya and Africa in general if flawed investigations are allowed by the Pre- trial chamber 2 and this case goes for a full trial.

The level of international flawed investigations in the Kenyan case are seen by any curious observer  on the level  of evidence collected where mere benchmark of death certificates for  1331 victims does not exist in the flawed investigations.

My lordship, we note that the dice is loaded against the Grand Coalition government of Kenya and the workability negotiated stands at political cliffhanger. It is important to realize that in conflict resolution one needs to “shoehorn” all stake holders so that the Grand Coalition survives the test of time. The Grand coalition in Kenya warts and all, has profoundly recalibrated Kenya’s political landscape. If the          Pre- trial Chamber 2 confirms these cases it would have added fuel (petrol) into an already fragile political scene.

My Lordships, The power sharing Grand Coalition in Kenya heralded a new chapter in Kenya’s political history where old enemies worked with new enemies to avoid a full scale conflict similar to that of Rwanda in 1994. The power sharing Grand Coalition in Kenya again has become a difficult balancing act given the ever silent cheap competition fueled in by USA as seen from the evidence of the Defense teams at this confirmation and its external arsenals and several intra- party struggles that have compromised the same spirit of tackling urgent reforms in Kenya.

The government of Kenya since 2008 is more on defensive mechanisms forced on them by deadline politics of USA and Ocampo, than constructive and developmental politics that Africa needs today.

My Lordships, we are not pessimists. We don’t think Kenya will fail or is a failed state as described under Article 17.3 of the Rome Statute, but it has too many local and international political mercenaries like Chief Prosecutor Moreno Ocampo that shoot down justice with flawed investigations in every iota of reform. It would be very strange in political science for an institution like the Chief Prosecutor’s office to work on deadline politics without making mistakes. That is why My Lordships they made mistakes in the investigations in the Kenyan case. For Kenya to make effective and substantial transformation it needs good friends not those like Moreno Ocampo, who threaten the same international standards of investigations. There is a need for centrifugal force of mutual political nature that would give ballast to government without having external supervisors like Chief Prosecutor   whose actions threaten the same good work of the Judges of the ICC.

My Lordships, there goodwill and space within which the government of Kenya can execute its difficult mandate of reforms. But there remains aura of fragility and uncertainty engulfing end to a Post- 2007 traumatized nation of Kenya largely because the Grand Coalition itself is fragile entity in political science with obvious enemies who do not want the President and Prime Minister of Kenya to succeed. There people in African politics who oppose for the sake of opposition and that is also part of  democracy that every reader of Aristotle will agree that it works in developed countries.  Moreno Ocampo has played in their hands by following populist politics in Kenya.

My Lordships, the international community especially the Chief prosecutor who flawed investigations in the Kenyan case and  turned ICC as an institution  into a political tool sadism ,  must  understand that characterization of Kenya as a sad and gloomy country  should stop. The government of President Kibaki is working hard to maintain the momentum of reforms but side shows like the ICC Chief Prosecutor Ocampo flawed investigations bring grief to some of East Africans like me.

My Lordships, we know that any political strategist’s world wide would sum up the political difficulties of Kenya and targets of the government of Kenya based on six areas:

  1. First Kenya has to stabilize and revive institutions that help in democratic governance without too much democracy and interference by hazardous l institutions that use NGO power to dismember most African countries with night time donations based on treachery and non African patriotism.  
  2. The Institution like ICC is good but comes in too late and does too little and tries to create “a political Tsunami based on flawed investigations” .The Kenya government must be given chance to deliver a new reforms that will safeguard the same tenets of so-called much needed tools of governance to create more conflict in Kenya than resolve the political paralysis in Kenya. The ICC confirmations to full trial could create political patronage in the nation that could spill into 2012 elections.
  3.  The ICC move to refer flawed evidence to Pre- Trial Chamber 2 is one destabilizing factor on the future of Kenya’s political progress.  There must be political restraint from acting impulsively because the root causes cannot be found by retributive Justice of the ICC. Africa needs restorative justice that heals wounds. But I believe that Kenya can put these few reforms in place to meet the target.
  4. The Waki reports and KNCHR reports were done upside down “without proper conflict resolution benchmarks” that can stand the test of political time in the East African history. Peace was killed by the by the so-called secret envelope of Justice Waki report that was delivered to the hungry prosecutor using the mechanisms and assets of the Rome in 1998. This is why the political house in Kenya MIGHT apart if the case goes to full trial. Chief prosecutor lured Kenyans into a political trap that will never be avoided as things stand now. But the Pre- trial Chamber as a guardian of international justice can decide the destiny of the country by throwing out this case where the Chief Prosecutor can go for thresh investigations.
  1.  In doing so my Lordships Ocampo killed the same spirit of dialogue and brought political apprehension that we see in Kenya today. The shear scale of doing things unconstitutionally using flawed investigations and without clear knowledge of conflict resolution has now killed the good work that had been initiated in Kenya. The political battles in Kenya are as a result of shrinkage of constitutionalism and flawed investigations only add to the fire. The names and the evidence collected on suspects is not good evidence the ICC can l use to deliver Justice for Kenyans on both sides.
  1. There is a case of duplicity which goes to show that Justice delayed is Justice denied. The Justice Waki Report can still be contestable because it was collected at a time when hatred and mob justice was still fresh in people’s minds in the affected regions. Those suspected to be in the secret envelope were tried by international media through the Chief prosecutor media stunts that have been exhibited by the defence lawyers.
  1. That said, it is important to allow Kenyans to assemble a Local Tribunal to avoid the politics of mass hysteria that killed Jesus Christ. The Ocampo route is now flawed and has bungled investigations . This has  diluted the very Justice that Mr. Moreno Ocampo sings in his hymns and sermons to the world.
  1. Any analyst looking at Kenya from any angle and from any strategic trend will agree with me that the government Kenya should be given constructive pressure for free and fair election in 2012 .At the end of the tenure of the Grand Coalition there should not be any  new chaos.  If the ICC goes ahead with the full trial  of few leaders when the majority of actors remain intact it will create chaos for 2012 elections. This will help to avoid blinkered optimism that has become a refuge for many Kenyans. 
  1. There are people in Kenya who just hate some of n suspects in this confirmation hearing. This is   heaped and propelled on the orders of their masters in the Diaspora like Human Rights watch and the Chief Prosecutor of  ICC. There are countries where human rights don’t exist but no finger is pointed at them. Why Kenya and why go ahead with flawed investigations.

 

Lastly my Lordships , we  abhor the dangerous politics of lecturing African leaders on democracy using the strategy of “politics of master and puppet rhetoric virus” that has killed many countries like Zimbabwe and Somalia. The terrible crisis that we see in Somalia and Zimbabwe were partly created b style and substance of  UN that has left these countries in ruins- serving imperial organs at the expense of African patriotism.

This is what Dr. Kwame Nkurumah detested and went down fighting. East Africans are carefully watching a pattern of political deceit  and flawed investigations created by the chief prosecutor  of ICC  (who) was   helped by Dr. Kofi Annan to become a Chief Prosecutor (without merit) with much disgust and protest.

My Lordships, flawed investigations have come  in many doors and we feel there are many political  undertones on Kenya cases  that we should alert the chamber where Judges at Pre- Trial Chamber 2  are looking  at Africa cases. Given the climate and condition that you have seen in Kenyan flawed investigations  we request you to intervene ,  restrain ,  clip the hands and wings and  the actions of Mr. Moreno Ocampo flawed investigations in the current cases  that might turn Kenya into political inferno in 2012.

Thanking you in advance,

I remain

Yours truly

 

David  Nyekorach- Matsanga (PhD).

Founder/ Chairman/ CEO

Before my hand in The Hague 26th September 2011


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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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