MWANGI: ICC should use recanted evidence in Ruto’s case if justice is to prevail

By Isaac Mwangi, East African News Agency

Last week’s diplomatic efforts by Kenya to rally the Assembly of State Parties (ASP) of the Rome Statute to support its cause spoke volumes about global thinking with regard to impunity in Africa.

Kenya has largely succeeded in rallying the rest of Africa behind it to support its efforts to terminate the cases its leaders have been facing at the International Criminal Court. President Uhuru Kenyatta’s case having been already terminated, the country’s diplomats have gone on an all-out offensive to seek the termination of Deputy President William Ruto’s case.

Apparently, the only thread holding Ruto’s case in place is the testimony by witnesses who later changed their minds and disowned what they had told ICC prosecutors. The use of recanted testimony was allowed through Rule 68 that was established by the ASP in 2013, but Kenya argues that this rule should not be applied retroactively to cases that were already before the court.

It is to be expected that witnesses in such cases would experience enormous pressure to withdraw their testimony, hence the importance of using recanted testimony. Many witnesses allegedly have been murdered, or have simply disappeared without trace and are therefore presumed dead.

It should be remembered that some of the suspects in the Kenyan cases got into power, legitimately, through winning the 2013 elections; even before then, they were part of the power-sharing government that was headed by President Mwai Kibaki and Prime Minister Raila Odinga.

Without the use of such recanted testimony, it would be impossible to achieve justice for victims of injustice in all the crises that define this region – Kenya in 2007/8, South Sudan since 2013, and currently Burundi. But we shouldn’t be forced to wait until leaders are driven out of power for them to be held to account for their actions, especially when these have to do with gross violations of human rights.

Moreover, Africa has neglected to strengthen its own mechanisms to fight impunity. In June 2014, African leaders came up with the Malabo Protocol, which proposed to extend the mandate of the African Court on Human and Peoples’ Rights to cover genocide, crimes against humanity, war crimes, and 14 additional crimes.

This protocol was, however, watered down to exclude sitting heads of state and senior government officials, making it toothless in fighting impunity. Despite this, not a single country has to date ratified the Malabo Protocol.

With this background, would it be sensible to say that African leaders are keen to fight impunity? Certainly not. Yet there is a glimmer of hope, with Botswana refusing to go along with the crowd. That means that the rights of the downtrodden in Africa can only be respected through encouraging the rest of the international community to ignore African leaders. That is exactly what a section of civil society was doing at The Hague and must continue to do.

In years past, it would simply have been unthinkable to have a sitting head of state and his deputy being humiliated with appearances before an international court of law. Within the polarised environment of the Cold War, dictators around the world simply had to gain the protection of one of the global powers.

Today, however, circumstances have changed. Not only has the world become unipolar, but technology is also fast changing the structure of knowledge and information flows around the world. The new digital era is contributing to disgruntled masses everywhere – a daily diet of high-level intrigues, corruption, and all sorts of scandals inevitably leads to street protests and the fall of governments.

But the Arab Spring is yet to move southwards to Black Africa. Steeped in their ethnic and religious enclaves, many leaders in sub-Saharan Africa are yet to realize that the days of impunity and executive fiat are long gone.  And with many Africans thinking more about putting food on the table than matters to do with the injustices that have turned them into beggars and refugees, it is taking the insistence of the global community to bring African despots to account.

Despite constitutional guarantees in many of our countries, including East Africa, the Big Man syndrome has simply refused to go. The wave of hurried efforts to pass constitutional amendments in Rwanda and elsewhere to ensure leaders go beyond their mandated two terms is sufficient evidence of this. Having reduced their national constitutions to worthless pieces of paper, our national leaders will stop at nothing in subverting the will of the people.

That is where a strong civil movement comes in. This, coupled with a proactive media and significant external help, can help counter the anti-democratic moves by Africa’s dictators. Therein lies Africa’s hope of fighting impunity.