Award-winning journalist and author Tjitske Lingsma has closely followed events at the International Criminal Court as it took on cases in Kenya, the Democratic Republic of Congo, Central African Republic, Ivory Coast and Libya. Her book, All Rise: The high ambitions of the International Criminal Court and the harsh reality, released in English in September 2017 is a searing examination of the court’s performance, and the hopes for the future as it marks its 20th anniversary next year.
In this second installment of the serialization of the book variously described by critics as ‘rousing’, ‘thorough’ and ‘a sobering portrait’ of the ICC, Journalists for Justice brings you a perspective from the victims’ lawyer as well as the defence in one of the Kenya cases.
It is quiet when the legal representative of the victims takes the floor. Although international criminal law is said to be developed in the name of those who suffered, i n t he legal power struggle between the prosecutor and defence lawyers, victims often have just a supporting role. A new aspect of the ICC is that victims do have their own legal representation. In this case they are represented by Wilfred Nderitu. The Kenyan lawyer, with his deep sonorous voice, takes care of the interests of 628 victims. With his philosophical approach, Nderitu brings a whole new sphere into the courtroom.
For a few moments the lawyers couldn’t pass notes to each other. There are no smiles or laughter. Finally, amidst the commotion, there is a moment of calm to think about the fate of the people who directly suffered. A pain that i s only really known to persons who endured it, Nderitu says. Victims have been deeply hurt. ‘They suffered emotional damage and scarring, physical damage and scarring, financial damage and social damage.' Nderitu experienced pain himself. 'I may say that I know exactly what I'm talking about, being myself a survivor of the 1998 US embassy bombing in Nairobi,' he says, referring in one sentence to the terror attack by a group of jihadis, with a link to Osama bin Laden and AI Qaeda, during which over two hundred people were killed. Nobody in the courtroom can predict, when the lawyer speaks these words, how close Kenya is to this kind of violence again. The legal representative explains how the victims feel 'stripped of their dignity.' They are sad and angry. They blame themselves and are ashamed.
'They feel insecure and unsafe because they don't know whether they will be able trust their neighbours. They have been let down by the government who didn't do anything to help them or to get justice. Nderitu then focuses especially on the many forgotten children 'whose lives were drastically and brutally affected by their witnessing death, human injury, material destruction and other dangerous conditions.'
With their families they were forced to flee their neighbourhoods to 'a life of living in tents, with their parents having to wait for handouts from charitable organisations and well-wishers.' Many children dropped out from school. 'Their trust in the world, in spirituality, in deeply held beliefs about social order, justice, and humanity was fundamentally upset and replaced with cynicism, suspicion, and resentment for humanity,' Nderitu tells the court. 'The emotional scarring to them is lifelong.'
These are words that touch the soul. Judge Eboe-Osuji listens with great attention, his hand before his mouth. Nderitu explains how, in a refined way, people are victimised again by 'subtle silencing.' Politicians and ethnic communities stress that it is 'unfashionable to bear the rag of "victim" and therefore to participate effectively in the criminal justice process.' Every day they hear: 'Kenyans have moved on.' A slogan championed by the media and general public, says Nderitu, telling ·people there's no sense in looking back that victims should forget_ about the suffering, atrocities and justice. But they can't forget, Nderitu underlines. On top of the stigma they bear, victims face an intense pressure to give up. There are reports of witnesses and victims who no longer want to testify, and the Kenyan government trying to withdraw from the ICC. Nderitu brings the court back to the people in whose name these trials are conducted: 'Despite all these setbacks, the victims look up to you with hope that justice will be done in this case.'
This case is rotten
Meanwhile defence counsel Karim Khan can't wait to start his presentation. The successful British lawyer is a whopping rhetorical master, with an attacking style, using rich language, venom and big words.
His pleas contain sentences for which one would like to keep a dictionary permanently at hand. The lamps in the courtroom reflect on the bald skull of Khan, a man with small dark alert eyes and a vague grey beard that touches the points of a tiny moustache. When finally it's his turn, he manages to sound both stately and devastating at the same time. 'Mr President, your Honours,
Mr Ruto's waited quite a while to put forward the truth, and we welcome this opportunity to blow away, hopefully, some of the cobwebs of confusion, the deceptions, the errors and the misconceptions that have so woefully befallen the prosecutor in her investigations.' Khan praises his client, whose 'passion, his commitment, his objectives, his spirit has been his testament for a brighter Kenyan future' and who worked for a 'united Kenya, marching forward not as a disparate group of ethnic communities, but as one people under one flag. 'Khan goes on to describe there was 'a lot of press' and a bit of 'excitement' earlier at the start of the trial, because indeed, it is for the 'first time ever in the annals of international criminal-law that a serving head of state and deputy head of state have voluntarily, whilst in office, come before the court and bowed his head to justice in the expectation that justice will.be done.' However, the defence counsel stresses, 'one cannot escape the reality that this investigation has been exceptionally deficient.' Khan the case will be withdrawn or end in a 'not guilty verdict' and lead to an inquiry into how it was 'that somebody innocent has come this court to answer charges that will be shown to be patently false.
'In typical Khan sentences he wipes the floor with the OTP doesn't point at the current prosecutor Bensouda alone. It is her predecessor Moreno-Ocampo 'that must take an awful lot of blame for the systematic failings of this office that still bedevil the OTP today,' the lawyer said.
'Your Honours, we say that: here is a rotten underbelly of this case. That the prosecutor has swallowed hook, line and sinker, indifferent to the truth, all too eager to larch on -to any account, any story that somehow ticks the boxes that we have to tick in relation to putting forward a summons.'
In the break a Kenyan top official tells me that the deputy president pays his lawyers from his own pocket. There are two British lawyers in Ruto’s team with the title ‘Queens Counsel’: Karim Khan and David Hooper. There is a considerable price rag attached to hiring defence counsel of this calibre. The Kenyan official doesn't want to say how much money is involved, but even a court appointed and paid defence ream receives a monthly sum of 33,000 euros in the trial phase. The costs of Khan's top crew will be much higher.
After his opening shots the lawyer discusses a sensitive matter that has become a major problem of these Kenyan trials. We do not want witnesses to withdraw,' Khan starts. 'We want witnesses to come and be free to speak to the prosecution and to the defence, to speak the truth. And those that come to this court and speak the truth, are heroes.'
They have nothing to fear, the lawyer stresses. And if witnesses feel threatened, there is always the ICC's protection programme, which can bring them into safety, if necessary, abroad. Then Khan gets to the point he wants to make. The witnesses who think 'there's a foreign court in a foreign land that can be easily deceived, that they can spin a yarn that will entrap an innocent man, should be aware that this court can arrest and detain anybody who seeks to pervert the course of justice. Your Honour, no system of law anywhere in the world can operate with lying witnesses, with a culture where people feel, as a shortcut to a better life, they may think, they can lie.' He adds that the judges 'will need to be exceptionally vigilant in this case to unravel and unmask what we say is a very clear and glaring conspiracy of lies and · woeful inadequacies by the OTP.' But an observer notes that his words, which he has been repeating several times, now increasingly start to sound like a threat to deter people from testifying.
On the Bench
Khan performs his tasks as defence lawyer'.. He will cast doubt about witnesses, calls the case deficient and rotten, and presents his client as an ho_nourable man who could never have· been the organiser of viole_nce because he has been a model leader, and who in fact always _been in favour of the ICC. To visualize this positive image Khan shows video clips of 'On The Bench.' In this popular Kenyan TV program, ·anchorman Jeff Koinange (previously CNN) conducts interviews with famous people. Ruto has been invited numerous times. On the monitors in the public gallery the images appear of two men on a bench surrounded by a lush garden. In one of the first clips Ruto tells interviewer Koinange that the ICC will get all the support it needs. After having presented two videos Khan continues his tirade. 'What Mr Ocampo did, is latch on to an infected information stream.
It was convenient, it was easy- it may even be described as lazy prosecution, lazy investigations - but he didn't have regard to the source of the information,' says the defence counsel, who is famous for his use of metaphors and symbols. The OTP was 'drawn in an ocean of their own making of errors, relying upon a drip of evidence that selectively they have sought to put out, without any regard for the fact that the source of those drops is from a very polluted spring.' In short: 'They've been fed a lie.' Khan says the prosecution wrongly made use of 'a very convenient box of evidence given by Waki.'
The lawyer speaks mostly without notes. Sometimes, the colleague who is always there to support him, Shyamala Alagendra, sticks a piece of paper with instructions on the screen in front of him. The ridiculousness of the accusations against his client, Khan asserts, is shown by the fact that two sisters of Ruto are married with Kikuyus, the ethnic group that is said to be attacked by his network. His own nephews and nieces have Kikuyu names. 'He pays for those children’s' education,' Khan adds. Now would a man like that say: 'All Kikuyus, out! You're no longer wanted! You'll be kicked out! You'll be killed!'? The charges simply aren't logical.' My submission to you is that you're getting the truth today from us. With the greatest of regret, you're not getting the truth from the prosecution when it comes to the responsibility of William Ruto.' The defence counsel tells the judges they carry a heavy burden. 'A man's· life, his good name, is in your hands.' Again he shows an 'On The Bench' video clip. This time Ruto tells Koinange how the charges weigh on him.
While the cheesy interview is being shown on the screens, a faint ironic smile appears on Bensouda's face. The accused Ruto laughs about himself.The images are shown to point out what a fine man the deputy president is, but unintentionally the clips function also as short theatre scenes that offer some distraction. They lighten the heavy atmosphere in the courtroom. The Kenyan members of parliament, who travelled with Ruto and sit in the public gallery, are amusing themselves with the clips. Every now and then the ambassador bursts into laughter. With a lot of emphasis anchorman Koinange pronounces his words when he describes Ruto as a victim of the ICC. 'You are being dragged through the mud,' he says.
'That is an understatement, Jeff,' Ruto answers. In case anyone still has any doubts about his client, defence counsel Khan points out: Jeff Koinange is a Kikuyu. Just like Ruto's brothers-in-law, the anchor belongs to the ethnic group that, according
to the analysis of the prosecutor, has been the target of the supposed network. The OTP's allegations against Khan's client are not only unlikely, but it is a 'false, concocted case,' the lawyer says. It is counsel's job to present his client in a most favourable way. There is, however, also another story to tell. During some of the bench-talks with Koinange, Ruto is still minister of higher education. But he lost that post after corruption accusations. There were other scandals as well in which his name featured. In fact, just before the start of the ICC trial, Ruto had faced a case before the national courts in which he was accused of land grabbing.
The 70-year old farmer Adrian Muteshi was a victim of the post-election violence. Early 2014 he had fled his farm and land in Uasin Gishu County, one of the worst hit areas. He lost his possessions, that finally ended up in the hands of no one else but William Ruto. Muteshi had the courage to start a court case. The case went up to the High Court, which concluded that Ruto could not present the official documents showing he had lawfully purchased the property. The judges ruled he had acquired the land fraudulently. Ruto was ordered to surrender the land to the farmer and to pay the victim 5 million shilling (42,000 euros) compensation.
All Rise is published by Ipso Facto (Second Edition, June 29, 2017), pp: 448. Reproduction of this excerpt is NOT permitted unless with the author’s written permission.