WAMBUGU: Justice cannot prevail on lies; ICC should know this!

By Ngunjiri Wambugu

I am one of the millions of Kenyans who in 2011 believed deeply in the capacity of the International Criminal Court to solve Kenya’s 2007/08 post election violence problem. I believed this court could do what Kenyans had been unable to do; hold someone accountable for the dead, injured and displaced in the 2007 election related violence.

Unlike most Kenyans, however, I spoke out publicly and passionately about my support for the international court. It is one of the few things I sincerely regret ever doing. ICC is an institution that has proven to be nothing but a ‘fraud’.

We have been taught that truth is a fundamental aspect in the pursuit of justice and one cannot deliberately accommodate lies in a judicial process and still claim to be interested in seeking justice. This is why, literally, every judicial court in the world (where genuine justice is sought) automatically charges anyone who is proven to have lied in judicial proceedings with perjury. Upon conviction such liar immediately gets a jail term.

It is even more serious when such liar is part of the prosecution. It is immediately understood to mean that the liar wants to manipulate the court and use the force of the law to hurt an innocent person. This goes against every principle of justice and the prosecutor him/herself will usually first stop whatever other proceedings are ongoing; charge and prosecute the liar; have them jailed; then proceed with the previous matter.

Any prosecutor interested in protecting their own integrity understands they cannot be associated with lying witnesses. They know it delegitimizes the very law they claim to serve and protect.

When I say the ICC is a fraud, it is because of how it has dealt with lies in the Kenyan cases; especially the DP William Ruto and Joshua Sang case.

It is on record that ICC Prosecutor Fatou Bensouda gathered witnesses who, on their own admission, have since admitted they lied. But she has shown absolutely no inclination whatsoever to charge the confessed liars for perjury; even when they themselves have admitted they wanted to use her office to subvert justice. Instead she has embarked on disingenuous attempts to justify why they lied; offering wholly unsubstantiated reasons which not even the witnesses themselves have stated.

But that is not all.

The ICC Prosecutor is also asking us to stretch logic to accommodate her arguments. According to her, a witness is more likely to lie in open court, on the stand, under intense cross-examination by the defence, prosecution and the judges than in a private room under questioning by her office’s investigators. She expects us to believe that testimony adduced before all parties and judges in open court is less reliable for its truthfulness and genuineness than testimony made behind closed doors without the scrutiny of the same judges, opposing parties, or the public!

Not a single one of the local or international NGOs that claim to support international justice have challenged this unequivocal and unreserved assertion by the Prosecution; that her statements signed by her witnesses in her offices and behind her closed doors are absolutely true and beyond reproach. This can only fuel the long-running suspicion of an unholy conspiracy between the lying witnesses, the Prosecutor, and these NGOs. This conspiracy is suspected to have been behind the identification and offering of financial and other incentives to (false) witnesses in exchange for statements in support of the Prosecutor’s case.

In my opinion, this unholy conspiracy extends to the ICC judges. It is the only way to understand why they have not directed the Prosecutor to charge her witnesses for perjury, despite the fact that no one contests the fact that her witnesses have lied at least once while under oath. It also explains why they did not question the Prosecutor’s decision not to dispose of earlier recanted statements. I suspect they all knew the law would be changed in future to allow use of past recanted evidence whatever the reversed testimonies might say.

Genuine witnesses who gave wrong evidence; have since withdrawn it; but now can only watch helplessly as the ICC Prosecutor uses their recanted evidence to build her case. They need to file a case against the ICC Prosecutor for violating their basic human rights and using evidence they have since recanted. They must go a step further. They should provide and publicize evidence of how the Prosecutor or her agents offered incentives that confused them to manipulate the truth. Kenya must now show the world why the ICC is a fraud.

Ngunjiri is a Director of Change Associates, a Political Consultancy