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Luis Moreno Ocampo tried to provide Uhuru Kenyatta an “honourable exit” from his ICC case

Journalists for Justice / 05 October 2017

By Thomas Verfuss

 

After his tenure as chief prosecutor of the ICC, Luis Moreno Ocampo tried to provide an “honourable exit” to Uhuru Kenyatta from his case in The Hague. This is what the leading Dutch daily NRC Handelsblad alleges in an article published Wednesday night.


NRC is part of a consortium of media from different countries that say that they have had access to 40,000 leaked ICC-related documents. Journalists For Justice has not seen the leaked documents.


NRC concludes that in 2013, after “Uhuruto” won the elections, Ocampo lost faith in the prosecutions which he had initiated himself. The Office of The Prosecutor at the ICC led by Ocampo’s successor Fatou Bensouda had to admit in front of the judges in The Hague that it was losing its witnesses, due to intimidation or worse.


Ocampo decided that a solution had to be found that would limit the damage to the reputation of everyone involved with the case. But Kenya would have to take the blame for the failure of the two trials, not Ocampo or Bensouda.


In October 2013, NRC says, Ocampo wrote an email to Kofi Annan, who had been the chief mediator during the 2007/08 post-election crisis in Kenya, saying: “It is time to look for an honourable exit for Kenyatta.” NRC alleges that Ocampo proposed that Annan send an envoy to the ICC: “An African, but not a lawyer.” Annan proposed to wait and see.


LMO is said to have interfered with the work of his successor by writing to one of her staff members, Sara Criscitelli, saying: “Several people tell me that the evidence is gone. […] When there is no evidence, a prosecutor does not go to the judges.”


A month later, according to NRC, Ocampo suggested to the Kenyan ambassador to the United Nations (UN) that Kenyatta’s accountability could be dealt with “in an alternative way”. Kenyatta should initiate reparations for victims.


In a reaction, Bensouda’s office said to NRC that she was “not familiar with Ocampo’s plan for an exit strategy” for Kenyatta.
LMO himself did not want to respond to the allegations, NRC says.

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By Terry Jeff Odhiambo

Gambia stands as a testament to the glacial progress Africa is making in the sphere of human rights. With the country on the mend and efforts under way to bring former President Yahya Jammeh to justice, the African Commission on Human and People’s Rights could scarcely have found a better host country to hold its 30th anniversary.

The celebrations in Banjul, between November 1 and 4, 2017, come at a time of hope and restoration for the Gambia after the end of Jammeh’s 22-year dictatorial regime. Jammeh’s government was notorious for its disregard of international human rights norms despite ironically hosting the ACHPR. Arbitrary arrests, threats, enforced disappearances and torture were commonplace. There is still plenty of room for improvement. Attorney General Abubacarr Tambadou, who is also Justice Minister, told the opening of the 35th Forum on the Participation of NGOs in the 61st Ordinary Session of the ACHPR that notwithstanding the various strides made by nations in the application of human rights instruments, the full enjoyment of basic rights and freedoms since the adoption of the African Charter, continues to face challenges. The Justice minister reiterated that the new government of Gambia had reaffirmed its commitment to protecting human rights and to living up to its position as the human rights capital of Africa. As recently as September 2017 the Gambia, signed five international treaties on the margins of the United Nations General Assembly, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, which seeks to abolish abolition the death penalty. In the coming months, Gambia is committed to ratifying more human rights treaties, including the Convention against Torture, and adopting a new republican constitution within the shortest time possible and developing a system of justice that can look into past atrocities and sustain its democracy. The NGOs Forum, which is usually held on the margins of the ACHPR Ordinary Sessions, is a platform for fostering collaboration between civil society organisations on the one hand and the ACHPR on the other, with the aim of promoting and protecting human rights in Africa.

Human rights abuses in Africa are a sad reality. The tableau of human suffering on the continent is scar on humanity’s conscience. From South Sudan[1], to the Central African Republic[2] to Egypt[3] and Ethiopia[4], abuses are increasingly being witnessed more than ever before. As one of the bulwarks against this depressing trend, the work of the ACHPR since its inception calls for evaluation. The promise by states and governments to guarantee human dignity and rights – through almost universal endorsement of the Universal Declaration of Human Rights and ever-increasing ratification of international human rights treaties – seems to have had little impact on the daily lives of millions of people in the region.

The sad reality is that the human rights situation in various African countries continues to deteriorate on the ACHPR’s watch. There has been an escalation of threats to the enjoyment of human rights on the continent, ranging from arbitrary arrests, infringement of freedom of association and assembly, police brutality and threats to human rights defenders. 

Since the inception of the ACHPR, seven states have never reported on the situation of human rights to the commission. The states -- Comoros, Equatorial Guinea, Eritrea, Guinea Bissau, Sao Tome and Principe, Somalia and South Sudan -- continue to witness some of gravest human rights violations on the continent. Twenty other states have three or more pending state reports -- including Gambia, while 16 other states have one or two pending state reports. Only nine states, namely Kenya, Algeria, Burkina Faso, Cote d’Ivoire, Mali, Mauritius, Namibia, Niger and South Africa are up to date with their state reporting obligations. The Democratic Republic of Congo[5], Rwanda[6] and Niger[7] are set to report during the 61st Ordinary Session of the ACHPR. State reporting procedure is a stock taking that serves as a forum for constructive dialogue and enables the Commission to monitor implementation of the African Charter and identify challenges impeding the realisation of the objects of the African Charter.

Some of the critiques that the Commission has received over time include the failure to implement its findings, such as decisions on: individual communications, concluding observations on State reports, country and thematic resolutions, and recommendations made in relation to missions to countries. 

The 61st Ordinary Session of the ACHPR will see the swearing in of new commissioners and the exit of those whose terms have ended. The ACHPR is composed of 11 Commissioners, who are “chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience” (African Charter, Article 31).[8] They are elected by the African Union Assembly from experts nominated by States parties to the Charter. The Commissioners serve in their personal capacity and are elected for a six-year renewable term.

The upcoming 30th Anniversary celebrations are an opportunity to reaffirm the values and enduring principles enshrined in the African Charter mobilize people around the continent, and take stock of human rights today in Africa. 

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