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The East African : Oct 27th 2014
The EastAfrican NEWS OCTOBER 25-31,2014 13 local political rivals? rest them, as is the case with President Bashir. It seems the only way for this court to remain relevant, and secure convictions, is to channel its resources to the smaller fish. According to Dr Sihanya, however, the big fish are, unfortunately, the troublemakers and the court has no option but to go after them. But how does the ICC ex- pect to convict a head of state who controls a government that is expected to enforce the court’s decisions? The Kenya case, which is being watched closely by legal experts around the world, “is a test case on co-operation and the ruling on Kenyatta’s case will determine the future of ICC,” Dr Sihanya told The EastAfrican. George Kegoro, executive make it more efficient. Could the Court, however, be setting itself up for failure by going after the big fish? Going by the Sudan and the Kenya cases, trials involving high-profile suspects are not going well. Sudan’s President Omar al-Bashir has been on the run. And all indications are that the trial against President Kenyatta could be terminated for lack of witnesses to give evidence. According to Dr Yitiha Simbeye, a law lecturer at Open University in Dar es Salaam, it has been proven that the elite around accused African leaders galavanise support and create a situation whereby the leader is seen to be more popular than they actually are, making it difficult to prosecute or even ar- director of the International Commission of Jurists (Kenya Chapter), argued that the Kenya cases are floundering because, one, it took too long for the cases to start and the support for ICC among the public was eroded with time. Second, the Chamber has adopted a disclosure regime that stripped the Prosecutor of secrecy and exposed witnesses, enabling the state, which is against the trial, to put pressure on the witnesses and their families. Nine cases fron Africa The ICC has nine ongoing cases, all from African countries. Four of the countries — Uganda, DRC, CAR and Mali — referred their own cases to the court. The cases of Sudan and Libya were referred by the United Nations Security Council while the Kenya and Côte d’Ivoire ones were taken up by the prosecution of its own volition. An examination of the progress in all these cases reveals why the ICC has registered success in some cases. The Court has been suc- cessful with suspects who are, first, not in government and, second, political rivals of the government in power. In the case of Uganda, all the indictments issued by the ICC so far are against members of the rebel Lord’s Resistance Army, which has fought President Yoweri Museveni for decades. The prosecution should have an easy time accessing whatever evidence it needs to convict LRA leader Joseph Kony. In fact, the US government pledged to assist Kampala to flush out Mr Kony from CAR, where he is believed to be in hiding. The Congolese individuals facing charges at the court are all political rivals of the administration in Kinshasa. As soon as he ousted his political rival Laurent Gbagbo, President Alassane Ouattara wrote to the ICC to investigate Mr Gbagbo’s role in the 2010-2011 Ivorian crisis that led to the deaths of thousands of people in the West African country. Ironically, when Mr Gbag- bo was president, he tried to use the ICC as a tool to fix Ouattara, then head of the Forces Nouvelles de Côte d’Ivoire (FNCI) rebel group that engaged pro-government forces in the civil war that ended in 2004. The trend has proven that African countries readily provide all manner of evidence when it is self-referral but there are difficulties when a case is taken up by the Prosecutor of referred by the Security Council. Reported by Fred Oluoch and Trevor Analo hea≥ inte≥national c≥imes cases structural constrains.” Rwanda, which is not party to the Rome Statute, was however of the view that the EACJ’s jurisdiction may be extended to cover crimes against humanity as long as such extension is within the protocol to operationalise the extended jurisdiction of the regional court. The EACJ’s mandate is limited to reso- lution of disputes between EAC member states. The extension was proposed by the Council of Ministers for approval by the EAC Heads of State in Kampala in November. To do so, partner states are required to amend Article 27 (2) of the Treaty to grant the Court jurisdiction over crimes against humanity trials covering both state and individual responsibility. Article 27 of the Treaty states: “The Court shall have such other original, appellate, human-rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the partner states shall conclude a protocol to operationalise the extended jurisdiction.” The category of crimes against hu- manity has many dimensions — including rape, sexual slavery and torture — but the court focuses on those most responsible for mass atrocities, especially high-level political officials who abetted but did not perpetrate the crimes. But political analysts say that, even with this limited mandate, the court is struggling. The infrastructure for prosecuting mass atrocities does not exist with few experienced prosecutors and investigators to draw on, they argue.
Oct 20th 2014
Nov 3rd 2014