By Susan Kendi
Jacob Zuma’s unceremonious exit from power and the lingering stench of his administration could herald a new dawn in relations between South Africa and the International Criminal Court (ICC). In an exclusive interview with Journalists for Justice (JFJ), author and legal researcher Mark Kersten posits that President Cyril Ramaphosa could seize on Zuma’s failings and his apparent indifference to the rule-based system while he was in power to get the African National Congress (ANC) to back away from its stated desire to ditch the ICC.
“Given that Jacob Zuma was so inundated with allegations of crimes and corruption to the tune of 700 plus charges, the hope is that Ramaphosa will say that he is recommitting the country to the international rule of law and domestic rule of law and the best ways to do that is to commit to the Rome Statute,” says Kersten.
In a wide-ranging interview, Kersten explains why “there is still life” in the Kenyan cases at the ICC and gives his take on the slow but promising justice push in The Gambia. The interview has been condensed for clarity.
Q: New reporting outlines reasons why a Kenyan judge stopped the extradition of Paul Gicheru and Philip Kipkoech Bett to The Hague for ICC witness tampering. Is there any life left in the Kenyan ICC cases even from the witness interference angle?
I don’t think the cases are dead in any sense. They have not collapsed. The warrants remain outstanding. Kenya has an obligation to surrender these individuals. At least that obligation exists to the ICC. Judicial authorities are taking that case very seriously as you can see in the various legal judgments. I do think that there is life, if you want to call it that, left in this ICC witness intimidation or violation of the administration of justice cases.
One thing that has received a lot of attention is the battle over the main cases. In the primary cases brought forward against Deputy President William Ruto and President Uhuru Kenyatta, the political narrative behind every story was whether or not Kenya had cooperated and whether or not elements of Kenyan authorities or people related to them had interfered with witnesses. That was the ICC line. “That is why our case collapsed. Because there was interference. Because there was witness intimidation. Because there was violation against the administration of justice.” And the Kenyan line was: “There was none of that. The reason the cases collapsed was because the cases were always bad and were poorly constructed. You went for the wrong people!”
I think that in these cases against individuals who are wanted for witness intimidation and interference, it is really about the story. It is about the narrative. It is about who is right.
If you want to protect the storyline that says, “Kenya cooperated fully and that no one in Kenya ever interfered with witnesses or disappeared witnesses”, then of course you do not want these individuals to appear before the ICC. The ICC wants them to be there not because they have interfered with witnesses but because if they get them to the ICC then their story has won the day.
Then the Court is able to say, “Aah we told you that those cases collapsed because of witness interference. We are sorry we could not get individuals responsible for international crimes but we got two or three people responsible for witness interference”.
I do think there is still life in this. The battle is about the story and the narrative about why the original cases collapsed because of the actual interference and witness intimidation that these individuals are alleged to have committed.
Q: South Africa announced its intention to leave the ICC at ASP15 in December 2017. Do you think the change of government in South Africa will alter this decision?
It is a complex issue in the sense that when the current President Cyril Ramaphosa came in, at that same ANC conference, there were resolutions passed which reaffirmed the party’s intentions to withdrawal from ICC and its animosity towards the Court. At the same time among pro-ICC and pro-multilateralism South Africans as well as international observers around the world, the hope has really been that Ramaphosa will be different from Jacob Zuma. Given that Zuma was so inundated with allegations of crimes and corruption to the tune of 700 plus charges, the hope is that Ramaphosa will say that he is recommitting the country to the international rule of law and domestic rule of law and the best ways to do that is to commit to the Rome Statute and to remain within the International Criminal Court.
It is not clear where he stands. It is obvious that in the early days of his administration Ramaphosa probably has different priorities. There are good signs that he would do something like stop the withdrawal of South Africa from the ICC. This is somebody who was on the commission that came up with the Responsibility to Protect principle. This is somebody whose good friends and colleagues around the world are advocates and proponents of global justice, human rights and will call him. I think he will be under some pressure from the people that he has worked with throughout his life. He is more of a Mandela figure in the sense that, like Mandela, he believes in the politics of international law, the politics of international justice and sees South Africa as an important member of the broader international community that believes in international justice and protection of human rights.
It is entirely possible that he will allow the ICC Repeal Act to go through parliament and simply ensure that ANC members of parliament vote on it but aren’t whipped to vote on it to ensure that it passes. In fact, if it went to a free vote within the parliament of South Africa and it was defeated, it would be a resounding defeat of any attempt by South Africa to withdraw. That is a plausible outcome and it would actually would be, in many respects, an ideal outcome to vote against the Repeal Act because it would say: “We have now voted. It has been open to the parliamentarians. Let’s defeat this politically and let’s reaffirm our support”.
It is very difficult at that point to reintroduce another withdrawal attempt. It would require Ramaphosa as the Executive to kind of step in and say, “You know what? The ANC is wrong. I don’t believe we should withdraw.” It may be a happy marriage of things but of course we don’t know right now what the votes would look like if all ANC members of parliament were allowed to vote. I think we will see but there is reason for cautious optimism.
Q: Uganda received a lot of praise for setting up its International Crimes Division but the Thomas Kwoyelo trial has hardly moved even as Dominic Ongwen’s trial proceeds quietly in The Hague. What does this say about complementarity?
I think there are problems. It is troubling that for whatever reason the Government of Uganda does not have a coherent approach to perpetrators of war crimes and crimes against humanity even those who are members of the Lord’s Resistance Army (LRA). Right now, what we see is that somebody like Kwoyelo is supposed to be prosecuted at the International Crimes Division. The prosecution of Dominic Ongwen was outsourced to the International Criminal Court while someone like Caesar Acellam was put in the barracks in Gulu and is not prosecuted at all despite widespread allegations that he is just as responsible for international crimes as Kwoyelo.
It is not a very coherent approach. It is difficult to understand why there is different treatment of different individuals, all of whom purportedly have perpetrated international crimes. None of them have been proved guilty so the crimes are still purported to have been committed.
It is important to stress how difficult it is to prosecute international crimes. Dominic Ongwen is the single most charged person in the history of the International Criminal Court. The Kwoyelo trial has faced incredible difficulties. He is now approaching 10 years of being in pre-trial custody. His case has never moved to the trial stage, which raises important questions about due process. Every single one of the international crimes of which he is being charged have now been translated into the domestic criminal code. The version of the International crime of which he is being charged has been translated into the domestic criminal code because the prosecution’s case on international crimes hasn’t stood up.
We are in an awkward position now of having an International Crimes Division that is prosecuting someone for non-international crimes under Ugandan law. Whether or not this is a situation where the ICD (International Crimes Division) in Uganda is simply learning and prosecutes someone like Caesar Acellam or some of the other individuals and, at some point, some of the allegations of crimes committed by government soldiers, I think we have to wait and see. That would be the hope but for the moment I think there remains issues and certainly questions to be asked before the ICD proceeds to efficiently and genuinely prosecute and investigate international crimes committed on the territory of Uganda.