Saving the ICC from African Thugtators
AFRICA, 22 Dec 2014
When an African president accused of multiple crimes against humanity walks out of court by orchestrating an unprecedented and audacious obstruction of justice, it is not just a flagrant denial of justice to the thousands of victims. It is an outrage against all humanity. It is an affront to the rule of law. It is the triumph of injustice.
It is a dark and gloomy month on the “Dark Continent”! It is the worst of times in Africa when a man in the highest political office accused of egregious crimes against humanity waltzes out of the International Criminal Court (ICC) grinning like a Cheshire cat and flipping the bird to Lady Justice. It’s a good thing she is blindfolded!
On March 8, 2011, Uhuru Muigai Kenyatta, son of Jomo Kenyatta, Kenya’s founding father and first president, was charged by the ICC Prosecutor with five counts of crimes against humanity in connection with the post-election violence that occurred in Kenya in late December 2007. According to the ICC indictment, Kenyatta, at the time a government minister, planned, financed, and coordinated the violence perpetrated against ethnic opponents of his ruling party. Kenyatta is accused of using the “Mungiki organization” (“Kenyan mafia”) to direct murders, deportations, rapes and other forms inhumane acts of persecution. An estimated 1200 persons lost their lives in that violence and nearly 700 thousand were displaced. All the charges against Kenyatta were confirmed by the ICC Pre-Trial Chamber II in January 2012.
On December 5, 2014, the ICC Chief Prosecutor, Fatou Bensouda, threw in the towel. She filed a notice with the ICC withdrawing allegations against Kenyatta, effectively dismissing the charges. Bensouda accused the Kenyan government of harassing and intimidating prospective witnesses, the principal reason for the withdrawal of charges. She explained, “Given the state of the evidence in this case, I have no alternative but to withdraw the charges against Mr Kenyatta. I am doing so without prejudice to the possibility of bringing a new case should additional evidence become available.” Bensouda was self-consoling, “Today is a dark day for international criminal justice. Be that as it may, it is my firm belief that today’s decision is not the last word on justice and accountability for the crimes that were inflicted on the people of Kenya in 2007 and 2008, crimes that are still crying out for justice.”
In an official statement, Kenyatta feigned outrage. “There is no justice when human rights clubs and an international tribunal conspire to betray victims of human rights abuses and persecute the innocent. The tragedy of this travesty is beyond words.” He triumphantly declared, “One down, two to go.” (referring to his deputy and co-defendant William Ruto and radio disk-jockey Joshua arap Sang who are facing similar charges). Is it likely that Ruto and Sang will also get away with murders, rapes and other crimes against humanity at the ICC? Could it be that what is good for Tweedle Dee Kenyatta must also be good for Tweedle Dums Ruto and Sang? In time, they too will walk. To add infamy to insult and injury, Kenyatta’s lawyer had the gall to demand an “apology” from the ICC Prosecutor “for bringing proceedings based upon false witnesses and impugning [Kenyatta’s] integrity”. Such is the utter depraved audacity of criminals against humanity and their defenders.
Of course, nobody bothered to ask the tens of thousands of survivors of the 2007 massacres – the poor and dispossessed men, women and children of the towns of Kibera, Kisumu, Naivasha, and Nakuru and elsewhere – who awaited justice for years how they felt about Kenyatta’s flimflamming of the ICC. The powers that be do not give a damn about the thousands of helpless, powerless and defenseless Kenyan victims of crimes against humanity. For the powers that be, it’s all about mind over matter. They don’t mind, and the victims don’t matter.
When a president of an African country accused of multiple counts of crimes against humanity walks out of court by orchestrating and choreographing an unprecedented and audacious obstruction of justice (witness intimidation, stonewalling, sandbagging, firewalling and whitewashing evidence), it is not just a flagrant denial of justice to thousands of human rights abuse victims in Kenya, it is an outrage against all humanity; it is an affront to the rule of law. It is a triumph of injustice in Africa.
I TOLD YOU… I TOLD YOU KENYATTA WAS GOING TO WALK!
I just hate to say it. But I told you. “I done told you! I told you Kenyatta was gonna walk, slide right out of the International Criminal Court dancing the Watusi. I just knowed it!”
In April 2014 when I wrote my commentary, “Saving the ICC: A Proposal for a Witness Protection Program”, I knew Kenyatta was going to walk. I had smelled a rat earlier in January. By April the stench was stinking the high heavens. That’s when I threw in the towel. It was obvious to me Uhuru Muigai Kenyatta would never face trial at the ICC.
I sympathize with the ICC Prosecutor and the ICC. They have been feeling a lot of heat behind the scenes from the powers that be. After all, Kenyatta is a “sitting president”. The ICC, the ICC Prosecutor, the U.N. Security Council and the West in general have been incinerated by inflammatory “race hunting” and “neocolonialism” charges leveled against them by some African “leaders”. Since the middle of 2013, a number of African “leaders” have been beating the drums of racism against the ICC, the U.N. Security Council and the West to divert attention from Kenyatta’s crimes against humanity.
Hailemariam Desalegn, the ceremonial prime minister of Ethiopia and rotational chairman of the African Union (AU), went on the warpath scandalizing the ICC and the ICC Prosecutor for organizing an African safari to “race hunt” black African leaders. It was in stark contrast to the ludicrous and hyperbolic rants of the senile, buffoonish but original thugster Robert Mugabe of Zimbabwe who in 2003 said: “I am still the Hitler of the time. This Hitler has only one objective, justice for his own people, sovereignty for his people, recognition of the independence of his people, and their right to their resources. If that is Hitler, then let me be a Hitler tenfold. Ten times Hitler, that is what we stand for.” Mugabe is proud to be an “African Aryan.” Hailemariam is fleeing from the “Great White Race Hunter”. How ironic!
In a last ditch effort to blackmail the ICC, Hailemariam and his accomplices at the AU tried to orchestrate a mass walkout on the Rome Statute (the international legal authority which allows the ICC to try criminals against humanity) at a special summit of the African Union in October 2013. In other words, they had planned on dumping the ICC in Africa. It was an iconic moment of shame for Africa and its “leaders”. They gathered in Addis Ababa in a pathetic spectacle like panicked prey fleeing a stalking predator (race hunter) seeking safety in numbers. They huffed and puffed, ranted and raved against the “race hunting” ICC on a safari in Africa. In the end, the threatened “mass treaty-cide” brinksmanship flopped.
A SUCCESSFUL PROSECUTION OF KENYATTA WAS VERY IMPORTANT TO ME
I have followed with considerable interest the ICC cases against the various Kenyan defendants involved in the 2007 post-election massacres. I have keenly followed the cases of Kenyatta, his Deputy William Ruto and the radio disk-jockey Joshua arap Sang (also charged with various counts of crimes against humanity). I have read hundreds of pages of trial transcripts in the Ruto/Sang trials and viewed delayed video transmissions of some of the proceedings. I have read a considerable number of commentaries and newspaper reports on these defendants. I have also extensively commented on the Kenyatta/Ruto cases in my weekly “Monday Commentaries”.
Why am I so keenly interested in a successful prosecution of these suspected criminals against humanity? To put it more bluntly, why am I so pissed off like a squirrel with a frozen pine cone about the “withdrawal of charges” against Kenyatta and likely dismissal of the cases against Ruto and Sang? The answer to these questions goes back to another post-election massacre in Ethiopia in 2005.
On May 16, 2005, one day after the election, the late Meles Zenawi declared a state of emergency in Ethiopia after it became clear that oppositon parties had routed his party at the polls. Meles took personal command of the armed and security forces and sidelied the capital’s police with “federal police” and SWAT-type special units. He outlawed all public gatherings. Meles authorized his troops to use deadly force against any and all protesters.
In 2006, an Inquiry Commission established by Meles himself pointed an accusatory finger solely at him for the deaths of 193 unarmed protesters and life-threateing gunshot injury to nearly 800 others. The actual number of casualties at the hands of regime troops in the post-2005 election is much higher, but the Commission’s report covers only designated dates and locations.
Benjamin Franklin said, “Justice will not be served until those who are unaffected are as outraged as those who are.” Living comfortably in America, I was unaffected by the Meles Massacres. When I became fully aware of the horrifying scope of the Meles Massacres in 2006, I was beyond outrage. I was “mad as the vexed sea”, to borrow a phrase from Shakespeare.
At the time, there were two critical questions uppermost in my outraged mind: 1) Should I speak out or turn a blind eye, deaf ears and muted lips to the Meles Massacres? 2) What should and must be done about the Meles Massacres?
My response to the first question was purely moral: I could not shut up and turn a blind eye to the Meles Massacres. I resolved the moral thing for me to do is to speak up and speak loudly and as often as possible to publicize Meles’ Massacres and his partners’ crimes against humanity before the court of world opinion. That I have done unflinchingly since 2006.
On the second question, I believed all responsible persons for the Meles Massacres (including Meles, police and security officials, police, security and military personnel who actually participated in the massacres) should be brought to the bar of justice and held accountable. It did not matter to me how long it took. Time was not of the essence. Justice was. I have always believed that sometimes justice delayed is just that: justice delayed. Not necessarily justice denied. I believe justice can sometimes be like a delayed train. It chugs and lugs, but it always arrives. Justice was delayed for decades for many of those responsible for the Holocaust. (It took 70 years to bring the former Nazi prison guard Johann “Hans” Breyer to the bar of justice. In July 2014, Breyer was charged with 158 counts of accessory to murder for trainloads of victims brought to Auschwitz in German-occupied Poland between May 1944 and October 1944.) I was confident and optimistic that Meles and his accomplices would one day be brought to justice for the massacre of 193 unarmed protesters and the attempted murder of 763 others in 2005 no matter how long it took.
In August 2012, jurisdiction over Meles’ crimes against humanity was mysteriously transferred to the Court of Highest Power with no appeals. He swiftly and suddenly received the wages of his crimes against humanity before a court of divinity.
It seems all African dictators attended the same school of dictatorship. If one dictator does something, the rest follow in his footsteps and try to outdo him. They copycat and mimic each other. It is a case of hyena see, hyena do for African dictators.
For me, there was a direct connection between the post-election violence of 2005 in Ethiopia and the post-election violence in Kenya in 2007. I believe Uhuru Kenyatta and his co-defendants drew important lessons from the 2005 Meles Massacres. Kenyatta & Co., saw Meles Zenawi & Co., use ethnically-organized troops to massacre their election opponents and get away without so much as a verbal warning of criminal prosecution for their crimes against humanity in 2005. In fact, they saw Meles Zenawi rewarded by the West with billions of dollars in aid and loans. They saw him being lionized as an “African leader”, not an African ogre of crimes against humanity. Why not do a Meles Massacre in Kibera, Kisumu, Naivasha, and Nakuru? After all, what is good for Ethiopia should be good for Kenya. Is it not true that all good things come to African dictators who massacre their people after elections and panhandle for Western aid and loans?
THE DEFENSE AGAINST THE DEFENSE OF KENYATTA ET AL
“Leaders” of the African Union (AU) have made Herculean efforts to defend Kenyatta and his deputy from prosecution in the ICC. They have also made every shameless effort to create an exemption from ICC prosecution for African heads of state. I have used my Lilliputian pen (keyboard) to expose the fraud perpetrated by the so-called African leaders and defend the rule of law, uphold human rights laws and principles and speak up on behalf of victims of crimes against humanity in Africa.
In my first full commentary on the ICC prosecution of Kenyatta et al., I strenuously objected to the shameless AU effort to racialize crimes against humanity. In my September 29, 2013 commentary, “The International Criminal Court on an African Safari?”, I took on Hailemariam Desalegn who had openly declared a rhetorical war of words on the International Criminal Court in May of that year. Hailemariam hurled the inflammatory and completely baseless and shameless allegation in the international media that the ICC was “race hunting” in Africa for seeking to prosecute Kenyatta, Sudan’s Omar Al-Bashir and others. Hailemariam preposterously declared, “African leaders were concerned that out of those indicted by the ICC, 99% are Africans. This shows something is flawed within the system of the ICC and we object to that. The process has degenerated into some kind of race hunting.”
I don’t know why Hailemariam makes a big deal about “99 percent”. In 2010, his party won over 99 percent of the seats in “parliament”; 99.6 percent to be precise. I have been complaining about that for years. Hailemariam has the gall to complain about a 99 percent ICC prosecution in Africa?!
Hailemariam’s claims that the ICC is “flawed” because 99 percent of ICC indictees are Africans reminded me an infamous American bank robber. Willie Sutton was asked why he robbed banks. His answer was simple and disarming. “Because that’s where the money is.” Why are 99 percent of ICC suspects in crimes against humanity from Africa? Because that’s where they are!
I argued that Hailemariam could not use the bogus claim of “race hunting” to shield himself and members of his regime from prosecution for the commission of crimes against humanity in the Ogaden, Gambella and other regions in Ethiopia and in the post-2005 election massacres.
In my October 6, 2013 commentary, “Saving African Dictators from the ICC”, I protested against shameless efforts by so-called African leaders to blackmail the ICC to drop charges against Kenyatta and Ruto; and if that did not work, to snuff and bury the ICC in Africa. I vigorously challenged Hailemariam’s mindless crusade against the ICC. I condemned his verbal pyrotechnics against the ICC, particularly his irresponsible accusations that the ICC is “race hunting” in Africa and preposterous claims that the ICC “has degenerated into a political instrument targeting Africa” and “adversely affecting” Kenya.
In my October 10, 2013 commentary “Witness for the International Criminal Court”, I vigorously defended the ICC and the ICC Prosecutor from charges of racism and allegations that they were being used as neo-colonial tools of African oppression. I called for the African Union to call off its extortionist threats of mass withdrawal from the Rome Statute unless charges against Kenyatta and Ruto were dropped. I urged African “leaders” to stop embarrassing themselves by talking all the nonsense about the ICC “race hunting them” and to stand up and fight. I challenged them not flee from the ICC like panicked antelopes chased by a lion on the African plains. I urged the AU leadership to project an image of confident African truth fighters, not cowering African prey fleeing from the “Great White Race Hunter”.
In my October 13, 2013 commentary, “The AU’s Mass Treaty-cide Brinksmanship”, I took head on the so-called African Union leaders who were orchestrating a “mass treaty-cide” (a phrase I was compelled to coin to describe the bizarre threatened walkout on the Rome Statute). At an “extraordinary summit” that month, the AU “leaders” shamelessly demanded “deferral of proceedings against the President and Deputy President of Kenya as well as the President of the Sudan in conformity with Article 16 of the Rome Statute.” They agreed to “undertake consultation with members of the UN Security Council”. Their “mass treaty-cide” collapsed. I suspect they approached the Security Council and grovelled.
In my October 20, 2013 commentary, “Who’s Having ‘Nightmares’ in Africa?”, I pondered over Kenyatta’s statement: “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.” I thought only the victims of Kenyatta’s alleged crimes against humanity were capable of having nightmares of machete attacks and Molotov cocktails burning their homes. I was wrong. Those who were behind the machete attackers were also having nightmares and waking up in a cold sweat at the thought of being held accountable before the bar of justice. (I hope they will continue to have nightmares until they take their last breaths.)
In my January 2014 commentary, “Kenyatta at the ICC: Is Justice Deferred, Justice Denied?”, I expressed my anxiety over the repeated delays, postponements and all the backpedalling talk about “false evidence” and “lying witnesses” Kenyatta’s trial. I minced no words expressing how felt: “I don’t want to say I smell a rat but I feel like I am getting a whiff. Is the stage being set to let Kenyatta off the ICC hook?”
In my April 2014 commentary, “Saving the ICC: A Proposal for a Witness Protection Program”, I threw in the towel. It was clear to me that world public opinion was being primed for the inevitable dismissal of charges against Kenyatta & Co. However, I believed the show must go on. To save the ICC, I proposed the establishment of an ICC witness protection program patterned after the U.S. model to maximize chances of successful prosecutions of suspect in crimes against humanity before the ICC.
THE RICHEST MAN IN KENYA GOT AWAY WITH CHARGES OF MASS MURDER, RAPE, DEPORTATION…
After the big financial institutions plunged the U.S. and much of the world economy into chaos in 2008, the U.S. Government decided to bail them out because they were “too big to fail”. They would not prosecute the white collar criminals who ran the interlocking corporations and financial institutions because they said that would be disastrous to the global economic system.
In my view, the same logic applies in Kenyatta’s case. Kenyatta was too big, too rich and too connected to the global powers that be to nail. Uhuru Kenyatta has been described by Time Magazine as “Kenya’s richest man”. Nailing and jailing Kenyatta in a criminal prosecution at the ICC could have “disastrous” consequences for the rest of Africa. A Kenyatta conviction would have necessitated the ICC to go after every African thug-cum-president and prime minister. Could the ICC really ferret out every African thugtator and deliver them to the bar of justice? Suffice it to say that in the matter of the ICC Prosecutor v. Uhuru Mugai Kenyatta, the verdict was “money talked and Kenyatta walked.”
There are some with overactive imaginations who wonder and speculate if Kenyatta’s case was “fixed” at the ICC. I am not one of them. But I have some questions: Did the powers that be lean on Prosecutor Bensouda to slowly back off the Kenyatta case and make it look good and convincing? Did all of the bellyaching, teeth-gnashing, chest-beating, moaning, groaning, griping and grousing by the so-called African Union leaders put the squeeze on Bensouda? Did the supplications of the African Union “leaders” to the “race hunters” at the Security Council and the ICC make a difference in the withdrawal of charges against Kenyatta? Was the whole Kenyatta case dragged out as a genuine effort to prosecute Kenyatta or to send a strong message to the other African thugtators that the ICC means business and don’t play? They better cool it with all of the massacres. In the Internet age, could the powers that be afford to be seen lounging around in bed with ruthless African thugs? Could the ultimate message of the withdrawal of charges against Kenyatta be: “Kenyatta walks this time, but let it be a lesson to all African thugtators that the next time around, the ICC means business”?
In my humble opinion, the case against Kenyatta should have proceeded to trial with the available witnesses and let the chips fall where they may. With all due respect, I disagree with Bensouda’s withdrawal of charges “given the state of the evidence”.
It is not uncommon for prosecutors to prosecute infamous criminals and lose big time. For instance, in 1988 in the United States, a federal jury in Newark acquitted 20 members of the Lucchese crime family of New Jersey, delivering a major setback to U.S. federal prosecutors going after mobsters and becoming the longest federal criminal trial in American history. The U.S. Government had to prosecute John Gotti, the boss of the Gambino crime family, three times before convicting him. Often when prosecutors lose big cases, the losses steel their determination. They learn from their mistakes and come back stronger, leaner and meaner than ever.
That is what should have been done in the Kenyatta trial in my view. Try Kenyatta with the available evidence because that is the right, just and fair thing to do. I also believe Kenyatta deserved an opportunity to clear his name. In March 2012, Kenyatta said, “I am confident that the truth will come out and I will be vindicated in the fullness of time.” The only way the truth could come out is if a full trial is held. Only a fair trial could have guaranteed Kenyatta the vindication he sought. It was very possible for Kenyatta to be acquitted.
Kenyatta will never be able to clear his name merely because charges were “withdrawn”. Kenyatta knows that the charges of crimes against humanity can never be withdrawn from the judgment of history. His legacy will forever be stained by the charges of crimes against humanity filed against him. His family’s name will forever be besmirched by the charges. He will go to his grave knowing that he was accused (and weaseled out) of crimes against humanity and never exonerated in a fair trial. His epitaph will read, “Kenyatta, Suspected Criminal Against Humanity!”
Some of my long time readers may be surprised by my visceral reaction to the withdrawal of charges against Kenyatta. As a dyed-in-the-wool defense lawyer, shouldn’t I be on the side of the accused come hell or high water? What happened to my lofty principles of presumption of innocence, proof beyond a reasonable doubt and due process?
I do not believe it is hypocritical of me to take a strong pro-prosecution stance in the Kenyatta, et al. matter. First, I have no doubts Kenyatta thwarted and subverted justice. The pre-trial transcripts provide reasonable basis to make that conclusion. Kenyatta got away with crimes against humanity not because there was insufficient evidence to convict him but because he did not play fair. Just like the late American mob boss John Gotti who tampered with witnesses and paid off jurors to get an acquittal.
I cannot and will never condone legal “victory” procured by chicanery, skullduggery and underhandedness. In fact, I condemn it unreservedly. When a defendant intimidates witnesses, bribes witnesses and suborns perjury and gets a “withdrawal of charges”, that is not due process. That is a miscarriage of justice, a crime on the justice system itself.
Kenyatta did not get the “withdrawal of charges” fair and square. The charges were withdrawn because witnesses were intimidated and bribed and the Kenyan government stonewalled and sandbagged the ICC prosecutor and refused to fully cooperate. In February 2013, Prosecutor Bensouda asserted that persons associated with Kenyatta had bribed and/or attempted to pay off a witness to withdraw his testimony and not to testify in the case. Bensouda stated, “Witness 4 revealed in May 2012 interview that he had been offered, and accepted, money from individuals holding themselves out as representatives of the accused to withdraw his testimony against Uhuru… The witness provided emails and bank records that confirmed the bribery scheme. In light of these cumulative revelations, the prosecution considers it is not useful to call him as a witness.” Kenyatta took every measure to prevent the ICC prosecutor from obtaining evidence from his government that was properly within the right of the prosecutor to demand and obtain.
A fair trial means playing by the rules and winning, not winning by subverting the rules and making a mockery of justice! There is no question Kenyatta beat the rap big time. Of course, he is presumed innocent until proven guilty in a court of law. But in the court of world public opinion, he is guilty as sin. In the minds of the thousands of Kenyans he is alleged to have victimized, Kenyatta is guilty as charged. In the court of his own conscience, Kenyatta must wrestle with this matter as long as he lives.
AFRICAN THUGTATORS DOING THE DO-SI-DO
I have no doubts that African leaders-cum-thugs are examining Kenyatta’s case and heaving a big sigh of relief. Whew! If Kenyatta had been successfully prosecuted, they could be next in line. No worries now. They chuckle in the thought that after the Kenyatta case, the ICC is just an International Criminal Court of Chumps. It is time to pop up the champagne bottles, lock arms and do the do-si-do singing:
Around your partner do-si-do,
Around your partner here we go (out of the ICC),
Around your partner and you’ll see,
How much fun it is to (screw the ICC),
Around your partner do-si-do…
I have no doubts that African leaders-cum-thugs looking at their Kenyan brethren are sneering and thumbing their noses at the ICC. That’s why all who believe in the rule of law must rally to save the ICC.
CAN WE SAVE THE ICC FROM AFRICAN THUGTATORS?
In my October 6, 2013 commentary, “Saving African Dictators from the ICC”, I was “concerned”, tongue-in-cheek, about the “welfare” of African dictators. Now, I am genuinely concerned whether we can save the ICC from the International Criminals and Crooks in high offices in Africa (ICC of A)?
Kenyatta’s alleged victims of crimes against humanity have certainly given up on the ICC. They are unlikely to believe the ICC can be saved. Following the “withdrawal of charges” by the ICC Prosecutor, the Voice of America reported, “Victims of the post-election violence [in Kenya] still feel they have not received justice. Many already had lost faith in the ICC process before Friday’s announcement.”
There are many naysayers and doomsayers who are predicting demise of the ICC. They say the Kenyatta case shows the ICC has failed and lost credibility. It is washed up. It has become a make-believe court.
My confidence in the ICC and the ICC Prosecutor is shaken, but I am not ready to walk out on the ICC. I believe the ICC can be strengthened and made more effective in its mission of identifying, investigating and prosecuting criminals against humanity. That does not mean tough questions cannot be asked of the ICC.
There is no question the ICC and ICC Prosecutor have some serious accounting to do. The ICC has 34 judges, over 700 staff, and an annual budget of $166 million. It has burned through well over one billion dollars over the past 12 years. For a billion dollars, the ICC has produced only two (Germaine Katanga and Thomas Lubanga Dyilo of the DR Congo) convictions. It also has fewer than three dozen suspects and defendants in the pre-trial phase, including those listed as fugitives. Forbes Magazine properly asked:
“They say you can’t put a price on justice but $500 million per warlord conviction seems high by any standard. And what do 34 judges do all day? You don’t have to be a legal expert to figure that the preventive effect of convicting 2 warlords in 12 years doesn’t exactly leave international war criminals shaking in their boots.”
My questions are: Could a portion of those billion dollars be used to compensate and rehabilitate victims of crimes against humanity? Is it not important to think about the victims of crimes against humanity and not only the monstrous perpetrators of crimes against humanity? If it is true that one cannot put a price on justice, is it equally true that one cannot put a price of the suffering of victims against humanity?
I believe the ICC and the ICC Prosecutor must do at least two things to be effective and avoid the type of end-run executed by Kenyatta: 1) prosecute African thugtators like the U.S. Government prosecutes mafia bosses, and 2) set up an effective witness protection program for persons cooperating with the Prosecutor and Court along the line of the U.S. federal witness protection program.
It is my view that African thugtatorships are essentially criminal racketeering organizations. The chief thugtators go by such titles as “prime ministers” and “presidents” but they are and operate no differently, except for scale, than mafia thugs or bosses. Mafia bosses rule with an iron fist using their “soldiers”. So do African thugtators. Mafia bosses have absolute control over their henchmen. So do African thugtators. Mafia bosses are ruthless in dealing with their enemies. So are African thugtators. Mafia bosses are in business for profits from their criminal enterprises across regions (syndicates). African thugtators are in politics to steal from the national treasury and engage in corruption on a national level (syndicates).
As I argued in my February 2012 commentary, “Thugtatorship, the Highest Stage of African Dictatorship”, if democracy is government of the people, by the people and for the people, a thugocracy is a government of thieves, for thieves, by thieves. Simply stated, a thugtatorship is rule by a gang of thieves and robbers (thugs) in designer suits. It is becoming crystal clear that much of Africa today is a thugocracy privately managed and operated for the exclusive benefit of bloodthirsty thugtators. In a thugtatorship, the purpose of seizing and clinging to political power is solely to accumulate personal wealth for the ruling class by stealing public funds and depriving the broader population scarce resources necessary for basic survival.
The ICC needs to adopt the investigative and prosecutorial strategies of U.S. federal prosecutors who pursue mobsters in their investigations and prosecutions of African criminals against humanity. U.S. prosecutors finally nailed Gotti after they were able to convince his underboss Salvatore “Sammy the Bull” Gravano to break the mobsters’ Omerta (code of silence) and testify against Gotti. If the ICC Prosecutor is serious about catching and prosecuting crimes against humanity at the highest levels of African politics, the Prosecutor will need to develop a network of informants in African regimes who can provide substantial evidence of crimes against humanity.
The principal problem in prosecuting incumbent African leaders suspected of crimes against humanity is (and will be) finding and securing the cooperation of credible witnesses inside the countries of the accused African leaders. As the Kenyatta case has shown, it may be easier to find a snowball in hell than finding witnesses in Africa willing to come forward to testify against “sitting African presidents, prime misters” and the like suspected of crimes against humanity. The absence of an effective and robust witness protection program is and will continue to be the Achilles heel of the ICC.
I have previously shared my views on the issue of having an effective ICC witness protection program in my April commentary, “Saving the ICC: A Proposal for a Witness Protection Program”. It is clear witness protection is a big problem for the ICC. In 2013, the International Bar Association International Criminal Court Programme (IBA) issued a report entitled, “Witnesses before the International Criminal Court”, documenting the challenges facing the ICC in “protecting, supporting and ensuring the rights of witnesses” before that tribunal. The report pointed out significant deficiencies in the ICC’s witness protection efforts and services. These included deficiencies in “obtaining state cooperation, supporting witnesses’ practical and psychosocial needs, organising logistics, securing their safe passage to The Hague, and protecting persons from potential threats or interference during investigations and trials.”
The ICC Prosecutor and the Court itself must find other effective ways of preventing witness intimidation, witness tampering, witness payoffs and subornation of perjury if the Rome Statute is to remain a credible deterrent to crimes against humanity for African leaders-cum-thugs and others. I believe the ICC Prosecutor should initiate its own “International Criminal Court Witness Protection Program” for deserving and carefully vetted witnesses patterned after the U.S. witness protection program (WITSEC). WITSEC provides effective protection to threatened and vulnerable witnesses against organized criminals before, during, and after a trial. In the U.S. program, witnesses and their families are provided new identities and documentation and relocated. Since the program was launched in 1971, nearly ten thousand witnesses and family members have been placed in the WITSEC program. Incredibly, “95% of the witnesses in the program are criminals.”
Just as the U.S. Government offered Mafia underbosses, capos, consiglieres and soldiers prosecutorial leniency and the chance to join WITSEC, the ICC Prosecutor should be prepared to offer full protection and a range of attractive incentives to those credible witnesses against the African bigwigs accused of crimes against humanity, including the chance for relocation to another country with their families. Without an ICC witness protection program, the chances of securing the cooperation of credible witnesses could be extremely limited. When WITSEC was first launched, many people expressed moral outrage over the whole idea of “coddling” and dealing with criminal snitches to catch the big criminal fish. They criticized Congress for following the “end justifies the means” policy. Though the Mafia is not out of business, racketeering laws and the WITSEC program have made a significant dent in all forms of organized crime in the U.S. and rendered organized criminals weak and vulnerable.
I believe many African criminals against humanity in power today feel confident that they will laugh their way out of the International Criminal Court certain in the knowledge that no one would dare testify against them and expect to live in their countries. The ICC should learn this fundamental lesson from the Kenyatta case. Justice is priceless but the small price of delivering justice to the victims of injustice and crimes against humanity is an integrated witness protection program. The alternative is courtroom window dressing, playacting justice on a world stage and telling a courtroom tale of injustice “full of sound and fury, signifying nothing,” as Shakespeare might have said.
WILL DESALEGN AND TPLF COMMIT CRIMES AGAINST HUMANITY AFTER THE MAKE-BELIEVE ELECTION OF 2015?
The Kenyatta affair accentuates my present concerns about potential crimes against humanity that could be committed in the so-called election scheduled in Ethiopia in 2015. I know it is a make-believe election as was the 2010 “election”. In 2010, the ruling party, the Tigrean Peoples Liberation Front (TPLF), won 99.6 percent of the parliamentary seats. My concern is whether the TPLF will resort to crimes against humanity in a desperate effort to get that four-tenths of a percent in the 2015 “election” and polish off its victory by 100 percent victory.
There is an objective basis for my concern. On numerous occasions, Hailemariam has said that he will always walk in the footsteps of his late mentor and role model Meles Zenawi. On September 21, 2012, Hailemariam emphatically declared he will continue “Meles’s legacy without any change”.
As far as I am concerned, Meles’ greatest legacy is a dark and bloody one involving the massacre of 193 unarmed protesters and shooting of 763 others. Will Hailemariam and his puppet-masters follow in Meles’ bloody footsteps and massacre unarmed citizens challenging the 2015 make-believe election?
The evidence seems clear. Hailemariam and his TPLF bosses seem to have the whole make-believe election mapped out to a T:
Phase I (completed)- Shutter all newspapers, magazines and independent publications and jail journalists, reporters and even social media bloggers.
Phase 2 (underway)- intimidate, terrorize, jail and prosecute opposition party leaders and all others who oppose the TPLF. Hundreds of members and leader of Blue Party were beaten and jailed for protesting peacefully. (See video of beatings and arrests of Blue Party members by clicking here.)
Phase 3- Unleash random violence throughout society and blame opposition parties, “terrorists”, etc. for deaths and injuries. (That will come just before the onset of the 3-month campaign period for the make-believe election).
Phase 4- Declare a state of emergency. (That will likely happen sometime during the three-month campaign period and extend into the post-election period.)
Phase 5- Celebrate the Tenth Anniversary of the Meles Legacy of 2005.
There is one thing that never ceases to amaze and dismay me. All the good things in life turn into a curse in Africa. In many parts of the world, elections, oil and minerals are sources of prosperity and good life. In Africa, they become a curse, a source of massacres, civil wars and corruption. Why? I don’t know!
Elie Wiesel, the Nobel Laureate and Holocaust survivor, said, “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”
I protest! Je proteste!
I accuse! J’accuse!
Prof. Alemayehu G. Mariam is an Ethiopian-born lawyer and political scientist who teaches at California State University, San Bernardino. His teaching areas include American constitutional law, civil rights law, judicial process, American and California state governments, and African politics.
This article originally appeared on Transcend Media Service (TMS) on 22 Dec 2014.
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