ICC: Uhuru Kenyatta’s “Personal Challenge” and Anti-Imperialist Rhetoric
During Kenya’s presidential debate in February 2013, President Uhuru Kenyatta termed his case at the International Criminal Court (ICC) on crimes against humanity, as a “personal challenge”. However, during a Press conference in October, Cabinet Secretary for Foreign Affairs Amina Mohamed shocked the Nation by stating that the ICC cases of Uhuru and Deputy President William Ruto ceased to be personal once they were elected. “As soon as you are elected into office, it actually stops being personal. If it was personal, it would have never made it to the agenda of the African Union Summit. It made it to the agenda of the AU [African Union] because he is a sitting head of State,” said Amina. She even went further by stating that Uhuru’s case had become both a national and continental matter. But when the United Nations Security Council (UNSC) rejected AU’s bid for the deferral of the cases on November 15th, Uhuru once again referred to his case as a personal challenge.
Joshua arap Sang, who is jointly charged with Ruto, has no elective position and is therefore not part of the bid to free Uhuru and Ruto by all means, from the tight grip of the ICC. Amina Mohamed has mentioned that his case is personal. During the election campaigns earlier this year, Sang revealed that former Prime Minister Raila Odinga was not responsible for the predicaments of both Uhuru and Ruto at the ICC. This position was recently confirmed by Ruto’s lawyers who overtly blamed former president Mwai Kibaki’s henchmen for “fixing Ruto” at the ICC. Interestingly, Sang unlike Uhuruto, wants the ICC proceedings ended speedily without the Jubilee Government’s numerous interventions through the AU, UNSC and the ICC Assembly of States Parties (ASP).
Ever since the ICC ruled that Uhuru should face trial, the President has led a vicious campaign to demonize Western nations whom, he claims, are interfering in Kenya’s domestic affairs by supporting the ICC. Earlier this year, the President hired BTP Advisers, a British PR-firm, “to work on his public image ahead of the ICC trial as well as his election campaign.” They shaped the words which he used in campaign speeches to blast the United Kingdom (UK). Uhuru is believed to have spent over KES 10 billion (100 million euros) during the election campaigns. The anti-Imperialist rhetoric was used by Uhuru mostly to convince the gullible Kikuyu and Kalenjin lumpens who voted overwhelmingly for the two indictees. Western diplomats cautioned Kenyans to be wary of electing the two ICC suspects with former head of the US State Department’s Africa Bureau, Ambassador Johnnie Carson, warning the Kenyan electorate ahead of the March 4th elections that “choices have consequences”.
Recently, Uhuru’s mother, Mama Ngina Kenyatta, was ranked by Ventures Africa magazine as one of the three female dollar billionaires in Africa. In the 1970s, she made a fortune from poaching, which contributed to the decimation of elephants for their tusks – (at least 15,000 were killed in 1973); zebras for pelts (at least 5,000 were shot illegally in six months during 1975); and colobus monkeys for their skins (two men were arrested with 26,000 skins in 1975). See: ‘Kenya: A History Since Independence (1963-2011) by C. Hornsby. Ironically, Uhuru’s wife Margaret, is currently leading an online campaign dubbed “Hands Off Our Elephants” whose goal is to stop ivory trade. Can she avoid sharing into the family’s illegally acquired wealth? No, because they have been “eating together” for a long time. Her father, Engineer Ephantus Gakuo, was appointed by the late President Jomo Kenyatta as Director-General of East African Railways (later Kenya Railways) in the 1970s and served up to 1987.
That Uhuru and Ruto spearheaded campaigns to “send themselves” to the ICC is water under the bridge and they should stop blaming the Western world. Why shout about Kenya’s sovereignty yet they threw it out of the window by refusing to set up a local tribunal? Why is Uhuru so scared of the ICC yet he has a retinue of well-paid lawyers to defend him? Why do his foot soldiers like Amina and Attorney General Githu Muigai deem it fit to turn his personal challenge into a Kenyan problem? This is definitely not the position of the victims of post-election violence (PEV) or those who did not vote for him. Recent perception poll results by Ipsos-Synovate posted in November, indicate that 67 per cent of Kenyans want Uhuru to attend his trial at the ICC. Further, why should the Jubilee MPs who routinely travel to The Hague in their support, get salaries for hanging out in pubs where they drink alcohol and sing karaoke after court proceedings, instead of working for their constituents? Imagine how much Kenyan money they are wasting there. CORD MPs and sensible Kenyan taxpayers should begin asking how much Ruto’s trial is costing them.
Diplomatic faux pas and impunity
Recent actions taken by Uhuru’s Administration have shown disdain to the international community, especially where the West is involved. For instance, Uhuru skipped this year’s 68th Session of the United Nations General Assembly in New York claiming he could not be out of the country while Ruto was away in The Hague attending his case. He also skipped the 23rd Commonwealth Summit held in Sri Lanka from November 15-17 and instead attended the Third Africa-Arab Summit in Kuwait from November 19-20. State House in Nairobi said this would benefit investments in Kenya’s energy sector. It was the first time for the country to miss both high profile international meetings. Pundits assert that Uhuru avoided the sessions because of expected tongue-lashing due to his ICC shenanigans.
Another contemptuous act is the ‘go slow’ by Jubilee government on the accreditation of six ambassadors from France, Germany, Italy, Japan, Zambia and Iraq. The last two are collateral damage; otherwise it is the Western and Japanese ones that are being punished for supporting the ICC. Japan was the Court’s biggest financial contributor in 2012. The excuse provided by State House is that Uhuru has a “busy timetable”.
On November 21, three officials from the British High Commission in Nairobi were kicked out of the Sirikwa Hotel in Eldoret by the Uasin Gishu Deputy Governor Daniel Chemno, who accused them of “violating diplomatic protocol”. They had arranged a meeting at the hotel with various civil society groups to discuss peace and reconciliation. Chemno claimed they had not informed the county government of their visit. However, the High Commission has mentioned that it sent a ‘note verbale’ (a less formal and unsigned note) to Foreign Affairs, prior to the visit. It is important to note the growing animosity of the Jubilee government towards civil society organizations which they see as staunch supporters of the ICC. During the election campaigns, both Uhuru and Ruto criticized them for depending on foreign donors to support their activities which they alleged were against Kenya’s national interest. It is feared that if the pending Miscellaneous Amendment Bill 2013 is passed by the National Assembly, then civil society organizations will be forced to source 85 per cent of their funds locally, which could eventually weaken their independence. Some Jubilee MPs and party supporters have criticized civil society activists for telling off Uhuru’s government in its bid to amend the Rome Statute, to provide immunity against prosecution for sitting heads of State.
During the ongoing Assembly of States Parties to the Rome Statute conference at The Hague (November 20-28), the UK is pushing for Uhuruto cases to be conducted via video link. However, Jubilee has opposed this and wants complete immunity for the two leaders. But a section of Kenyan media has reported of Ruto’s secret meeting in Nairobi last week, with UK and US envoys in support of the video link alternative. The call for immunity is a long shot and critics view it as a personal quest to satisfy Uhuruto and will only advance impunity. Both Amina Mohamed and Githu Muigai are confident they will win because Uhuru’s indictment would impact negatively on the country’s Constitution and growth.
Jubilee members are so desperately chasing the wind after failing to convince the UNSC that Uhuru’s indictment would affect international peace and security, with special reference to the Westgate Mall terrorist attack. Moreover, the filing for amendment of the Rome Statute was not procedural because it should normally be done three months in advance. Theirs was filed three weeks ago. Both Amina Mohamed and Githu Muigai are top lawyers who should know better, yet they are more focused on the political side of this process than the legal one. Uhuru must deal with his personal challenge and its consequences without dragging down the whole country.
Thursday, 21 November 2013
IMMUNITY WILL MEAN IMPUNITY
THE 12TH ASSEMBLY OF STATE PARTIES OF THE INTERNATIONAL CRIMINAL COURT
THE HAGUE, NETHERLANDS
20 – 28 NOVEMBER 2013
Debate on Prosecuting Heads of State and Government and its Consequences of Peace, Stability and Reconciliation
Remarks by Njonjo Mue, Human Rights Lawyer and Kenyan Transitional Justice Expert
On behalf of Kenyan Civil Society.
Moderator, distinguished delegates, ladies and gentlemen,
I thank you for this opportunity to address the Assembly on these important discussions on the indictments of sitting heads of states.
There is need to look at the impact the proposed head of state immunity will have on victims and affected communities.
Today as we discuss the proposed amendments to the rules of procedure and the Rome Statute it is important to take into consideration the following realities touching on the affected communities, victims and by extension post conflict societies:
1. That the Rome Statute system deliberately ensured that there would be no immunity for any individual on the basis of official capacity. Equality before the law for grave crimes is a fundamental tenet that is not only recognized by the Rome Statute but also by international practice and increasingly adopted by national jurisdictions. For example, contrary to the assertion of the Attorney General, my country Kenya has codified this tenet into its Constitution. Article 143 (4) provides that immunity of the President from criminal prosecutions does not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.
The perspective that the court is a court whose justice applies equally to all regardless of their status in society is the very reason it has received significant support from post conflict countries and more so those that the court is actively involved in.
Most Victims and affected communities have supported the court because of the realization that the court is capable of dispensing justice even when the alleged perpetrators are the most powerful members of society. A reality that does not exist in the judiciaries of most post conflict States.
The proposed amendments are likely to reduce the ICC to the same situation as the national judiciaries that affected communities rarely can place their faith in. In other words, the proponents of these amendments seek to remake the Court in the image of the very inadequate judicial systems that the Court was created to complement.
2. The Rome Statute targets only those most responsible for serious crimes of international concern. Looking at the cases that have been opened both at the ICC and other international tribunals, those most responsible tend also to be influential members of society who have the power and financial wherewithal to organise and plan for systematic commission of very serious crimes.
The proposed amendments would give those individuals the incentive to use their influence to capture power in order to evade accountability. These amendments therefore risk making impunity a prize to be won in an election, as well as a reason why having won that prize, leaders are likely to cling onto power to continue evading accountability.
Kenya’s Attorney General says that Kenya is a willing member of the Rome Statute and was not dragged kicking and screaming to the ICC. I agree with him. But once it became clear who was sought to be indicted, that it was some of the most powerful people in the country two of whom subsequently became President and Deputy President, the government has pulled out all the stops to enable the accused persons to evade accountability. The Prosecutor of the ICC is on record as saying that she has faced serious challenges with regard to cooperation from Kenya.
3. Victims and affected communities would be required by the proposed amendments to postpone their desire for justice, simply because the perpetrator is a head of state. What message would we be sending to the affected communities? That their dignity is dispensable as compared to the dignity of the heads of state who would have a free license to commit serious atrocities and evade justice so long as they are heads of state? Isn’t this the very reason that the deliberations on the establishment of the of the Rome Statue contemplated and forestalled this very threat by enacting Article 27 of the Statute?
4. It has been suggested that the proposed immunity is not substantive, but only postpones the time when a serving head of state may be indicted until after they have left office. However, in states that have weak judicial systems, non-existent or ineffective witness protection agencies, and where witnesses’ lives are put indefinitely on hold sometimes following relocation to unfamiliar foreign countries, proposing that a trial be put on hold for five or ten years will have the practical effect of leading to the effective collapse of such a trial. Immunity will mean impunity.
5. In conclusion, if as we all seem to agree, that justice is vital for sustainable peace and reconciliation, then accepting head of state immunity in circumstances that lead effectively to the collapse of the justice project will undermine rather than promote peace, stability and reconciliation.
Posted by Njonjo Mue at 14:28
KENYA’S BID TO AMEND ROME STATUTE LIKELY TO FAIL
Saturday, November 23, 2013 – 00:00 — BY NZAU MUSAU
Kenya may have bitten more than it can chew as far as some of the amendments it is proposing on the ICC Rome Statute at the ongoing Assembly of State Parties are concerned.
Kenya has not only failed to give the relevant three-month notice to amend the statute, the amendments – to be discussed this afternoon and on Monday afternoon – go to the very heart of the statute.
The dearest amendment to Kenya’s heart- entrenchment of immunity for sitting heads of states- is also the dearest to the statute.
Article 27 which Kenya wants amended provides for irrelevancy of official capacity. It says that the statute “shall apply equally to all persons without any distinction based on official capacity.”
To avoid any doubts, Article 27(1) expressly states that “official capacity as a Head of State or Government, member of government or Parliament, elected representative or a government official shall in no case exempt a person from criminal responsibility.”
For further avoidance of doubt, Article 27(2) adds: “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person.”
Kenya however wants this Article amended by including Article 27(3) to read: “Notwithstanding paragraph 1 and 2 above, serving heads of states, their deputies and anybody acting or is entitled to act as such may be exempted from prosecution during their current term of office. Such an exemption may be renewed by the court under the same conditions.”
Kenya argues that the Article as it currently stands “goes against the basic tenets of international law pertaining to privileges and immunities of government officials.” But civil society groups supporting ICC think otherwise.
“Immunity for government leaders before the ICC is contrary to the basic principle that no one should be above the law. We should not deny victims and their families justice because their tormentors hold high political positions,” Georges Kapiamba, President of the Congolese Association for Access to Justice said on Monday.
“Human rights abuses by governments and armed groups remain one of the biggest challenges confronting people in Africa,” George Kegoro, the executive director of International Commission of Jurists adds.
He says the ICC serves as a crucial court of last resort. Africog’s Gladwell Otieno said the amendment to exempt government officials contravenes everything the Rome Statute stands for.
“The principle of equality before the law would be violated if some accused are allowed not to attend trial based on status,” says Otieno.
She says the amendment is worsened by the fact that both Uhuru and Ruto were aware of their indictment when they offered themselves for presidency in the March 4 polls.
Besides Article 27, Kenya is also seeking amendments to Article 63, Article 70, Article 112 and even the preamble of the statute.
Article 63 provides that “the accused shall be present during trial.” It also provides for excusal of continuously disruptive accused from attendance in “exceptional circumstances”. Kenya argues that the statute does not define these exceptional circumstances.
It wants the article amended to say that “an accused may be excused from continuous presence in court after the chamber satisfies itself that exceptional circumstances exist, alternative measures have been put in place and considered, including but not limited to changes to the trial schedule or temporary adjournment or attendance through use of communication technology or through representation of counsel.”
Kenya wants the Article to also include other sub articles saying absence shall be considered on a case-by-case basis and that such shall only be granted if the trial chamber satisfies itself that the exceptional circumstances exist.
On Article 70 which talks of “offenses against the administration of justice”, Kenya wants it stretched to include the prosecutor as a possible culprit. Both Uhuru and Ruto’s defence have severally made multiple allegations against the prosecutor.
“This particular Article presumes that such offences save for 70(1)(f) can be committed only against the court. Noting the current situation in the Kenyan cases especially Trial Chamber V (b), this article should be amended to include offences by court officials so that it’s clear that either party to the proceedings can approach the court when such offences are committed.”
On Article 112, Kenya complains that the Office of the Prosecutor has been evading oversight citing Article 42 which guarantees its independence. Kenya wants the statute amended to expressly subject OTP to Independent Oversight Mechanism.
“It is proposed that IOM be operationalised and empowered to carry out inspection, evaluation and investigations of all the organs of the court,” Kenya said in a November 7 proposal send by Deputy permanent representative to the UN, Koki Muli Grignon.
On the preamble of the statute, Kenya wants it amended to reflect complementarity at regional level as well. Currently, it says the “ICC shall be complementary to national jurisdictions.”
Kenya says the amendment is inspired by the African Union resolution, which urged that the cases be handled nationally or regionally.
In addition to these actual amendments to the statute, Kenya is also seeking amendment to Rules of Procedure and Evidence. Contrary to Foreign Affairs Principal Secretary claims that AU/Kenya has not sought option of trying the accused through video-link, Kenya has made a specific proposal on video-link.
On November 4, Kenya’s permanent representative to the UN Macharia Kamau proposed an amendment to Rule 134 to synchronize it to the proposed amendment to Article 63.
The proposed amendment basically provides for option of carrying trial via video-link or through representation of counsel with the chamber’s approval.
Of note however is that Kenya’s proposal covers “entirety of trial”. This is where Kenya has differed with other proposals for the same including the UK which floated its own version of amendment reading: “In accordance to Article 63, paragraph 1, and after hearing the participants and the Registry, a Chamber may allow the accused to be present by means of video technology for part or parts of the trial.”
Two other amendments on Rules are lined up for discussion and adoption. Two of them have emanated from the court and have been subjects of long-running discussions with relevant committees of the court in following a road-map designed for amendments.
These two are amendments to Rule 68 and Rule 100. While the latter may serve to help Uhuru and Ruto if adopted, the former may work against them.
Currently, Rule 100 provides for trial away from the Hague but with approval of ICC presidency (three judges at the apex of the court), relevant chamber and support of two-thirds of all ICC judges.
The process is however complex and involves parties to the case (defence and prosecution) or “majority of judges” writing to the presidency first.
The presidency then consults the views of the relevant chamber before consulting the state which wants to host the trial. Thereafter, the plenary of the ICC judges take a vote. At least two thirds of judges must support the idea.
According to ASP’s Working Group on Lesson’s Learned (WGLL), this rule which is aimed at enabling the defendants – who are not subject to a warrant of arrest – to conduct their public and private life with minimum disruption is illogical and unfair.
Previous attempts to relocate the trial venues have “encountered such complex procedural challenges, linked to the current formulation of rule 100, that the process could not be pursued further. ” Ruto tried it earlier in the year and failed.
The proposal is to amend it to strip the plenary of judges of its powers to initiate or authorize the relocation of trial from the Hague.
The argument is that the plenary cannot take part in determining a matter of a case “that is not managed by and not known to them in an exhaustive and intimate manner.”
The matter will be determined by the relevant chamber judges together with the presidency which represents all other judges. Unlike the present case, the amendment would open door for appeal by either party.
On July 11, Ruto lost a motion to hold the trial in Kenya largely owing to the ‘tyranny of the plenary’. This is despite all the three judges in the Ruto case, who knew the intricacies of the case voting ‘yes’. The matter could also not be reversed even after judge Eboe-Osuji filed a motion to vacate the plenary vote citing gross procedural flaws.
If the amendments were to pass and Ruto re-applied to relocate the trial to Nairobi, he would most likely have his way as all judges in his case supported it in July.
However, amendment to Rule 68 is quite something else. And Kenya is bitterly opposed to the amendment. The amendment will give the prosecution more room to introduce prior-recorded testimony during trial.
Currently, the Rule provides for two instances where prior-recorded testimony can be introduced.
The two are when a witness who gave a previously recorded testimony is not present before the trial chamber but both parties to the case had the opportunity to examine the witness during the recording or if the witness present before the trial chamber, is not opposed to introduction of such recorded testimony and is ready to be examined on it.
The amendment proposed by the court but which Kenya believes was initiated by the prosecution wants to add three additional instances.
These are; where the recorded evidence goes to proof a matter other than the acts and conduct of the accused, where prior-recorded testimony comes from a person who has subsequently died, presumed dead or unable to testify orally and if the prior-recorded testimony comes from a person who has been subjected to interference.
According to ICC’s Working Group on Lessons Learned (WGLL) chaired by court Vice President Judge Sanji Mmasenono Monageng, the amendment is “intended to reduce the length of ICC proceedings and streamline evidence presentation.”
They also say the amendment reflects practice in international criminal tribunals. The group says the proposal received “broad support” from major stakeholders.
“We are totally opposed to this amendment. We believe it is an attempt by the prosecution to rescue their falling case through the back door. We will be pushing for its rejection at the ASP,” Evans Monari, a lawyer said.
The prosecution has severally claimed that several Mungiki leaders who participated in the post-election violence were neutralized prior to the commencement of the cases. It is not clear whether the prosecution had taken statements from them or whether the Waki Commission had.
If these individuals, and others who may not be able to attend the trial, recorded statements, they can be used against the accused at trial.
These two amendments have the best chances of passing through at the ASP because they have been ventilated since March and the necessary consensus and legitimacy has more or less been achieved. This is unlike the other proposed amendments to either the rules or statute which have been floated last minute.
Judge Monageng, who is also ICC’s first vice president has complained about the haste in which the other amendments have been processed. His boss, Judge Sang reiterated the same when he addressed the ASP on Wednesday pleading with it not to pass amendments in haste.
The proposal to amend the Rule 134 to include trial via video link was communicated to the court on November 1. The court was given five days (until November 6) to provide views on the legal aspects of the amendment.
The letter to the court was signed by Ambassador Hakan Emsgard (Sweden), the current chair of ASP’s Study Group on Governance. It was addressed to Judge Monageng in his capacity as chair of ICC’s Working Group on Lessons Learned (WGLL).
In his reply of November 4, Monageng wrote: “The proposal has been communicated to the court on an urgent basis. Therefore, the court has not been able to engage in the regular consultation process for proposed amendments.”
He said other amendments (on rule 68 and 100) have undergone “rigorous and thorough review” using a road-map agreed at the last ASP in November last year.
The road-map entails proposals being sent to the Study Group on Governance and to the Advisory Committee on Legal Texts (ACLT). It would also involve Monageng’s-chaired WGLL and another body called Working Group on Amendments (WGA).
Ultimately, the proposal to amend the rules must be in place two months before the commencement of the ASP meeting. Monageng said the late submission of the proposals meant they missed the input of judges of WGLL, ACTL, other judges of the court, representatives of the prosecutor, registry and other counsels who sit at ACTL.
“In light of the above, I am only in position to convey a preliminary analysis of the proposal,” the judge said in the letter.
In his remarks, Monageng cautioned those pushing for amendments to ensure that they align them to the statute. He reminded them of Article 51(5) of the statute which says in case of conflict between the statute and the rules, the former will prevail.
He reminded them that Article 63 of the statute says “the accused shall be present during the trial”.
“If the amendment proposal were not consistent with the statute, the court would be compelled not to apply the rule in accordance with Article 51(5) of the statute,” he warned.
Monageng appeared to suggest that it would be in vain to amend the rules without amending the statute. Although Kenya has proposed the amendments to the statute, their chances of them being settled in this ASP are very low.
In the last few days at the ASP, many state parties including Norway kept harping on the importance of amendments being processed through the WGA. Many states are also alive to the fact that most the amendments, although designed to address the Kenyan conundrum, has long term effect on the court and other cases.
Many stand to be surprised if Kenya manages to chew what it has already bitten with these multiple amendments, proposed at short notice and with far-reaching implication to international law.
Headed to The Hague: Bemba Defence Counsel, Political Allies Arrested
Posted on November 24, 2013by Mark Kersten
Few issues have stirred as much controversy at the International Criminal Court (ICC) than the use and misuse of evidence and the treatment and mistreatment of witnesses. The trial of Thomas Lubanga was almost thrown out twice because the prosecution refused to provide exculpatory evidence to Lubanga’s defense counsel. In the Kenya cases, both the prosecution and, more recently, the defence have alleged that witnesses have been intimidated and tampered with. Just a few short weeks ago, Walter Barasa was indicted by the ICC for allegedly “attempting to corruptly influencing three ICC witnesses.”
But news that four individuals, including lawyers representing Jean-Pierre Bemba have been arrested and are on their way to the ICC has rocked The Hague. Since 2010, Bemba, a former Vice President in the Democratic Republic of Congo (DRC), has been on trial for his alleged responsibility in the commission of war crimes and crimes against humanity in the Central African Republic. His lawyers are charged with committing “offences against justice”. Here’s the statement from Chief Prosecutor Fatou Bensouda:
Pursuant to this warrant, on 23 and 24 November 2013, police forces in Belgium, France, The Netherlands and the Democratic Republic of the Congo arrested four individuals whom my Office alleges are responsible for offences against the administration of justice under Article 70 of the Rome Statute. The warrant of arrest was also notified on a fifth person, Mr. Jean-Pierre Bemba Gombo, who my Office alleges has ordered, solicited and induced these attempts to pervert the course of justice in relation to his on-going trial at the International Criminal Court (ICC). Since his arrest in 2008, Mr. Bemba has been in detention at the ICC where he is facing charges of war crimes and crimes against humanity. He completed the presentation of his case before Trial Chamber III on 22 November 2013.
Persons arrested pursuant to the current warrant of arrest are Messrs. Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Narcisse Arido and Fidèle Babala Wandu. National procedures are on-going for their surrender to the Court.
The individuals arrested include, amongst others, members of the defence team of Mr. Bemba. It is particularly disturbing that a member of the legal profession is alleged to have intentionally and systematically participated in criminal activities aimed at undermining the administration of justice.
Those detained are senior political and legal figures. Some sources maintain that, in an addition to Bemba, the four individuals who were notified with a warrant of arrest are his Lead Counsel, case manager, a member of the DRC Parliament and a Defence witness. According to the AFP,
Bemba’s lawyer, Aime Kilolo Musamba, was arrested in Belgium over the weekend and will be transferred to the Netherlands. Bemba’s legal case manager, Jean-Jacques Mangenda Kabongo, a defense witness, Narcisse Arido, and a Congo lawmaker, Fidele Babala Wandu, also were arrested on suspicion of presenting false documents and bribing witnesses.
Kevin Jon Heller is has issued a warning to commentators and observers to not celebrate the arrests too quickly:
If Bemba’s lead counsel and case manager are guilty of witness tampering and manufacturing evidence, they deserve to be punished. But I’ll say this: the OTP better be right. Because if they are not — and all four arrestees are, of course, presumed innocent — the Court has deprived Bemba of his right under Art. 55(2)(c) of the Rome Statute to have “legal assistance of his choosing” and crippled his defense in the middle of trial. Lead counsel plays a critical role on a defence team, and in many ways a case manager plays an even more important role. So I have no idea what happens now with Bemba’s trial — although I suspect the Court will pretend new lawyers can simply slide into the roles previously occupied by the arrested lawyers, perhaps adjourning the trial for a month or so to give the new lawyers time to “get up to speed.”
Regular commenter Maya makes a number astute points in taking issue with the positive tone of the post. I agree that the arrests represent a limited example of state cooperation in light of the selectivity that has characterized the ICC’s intervention in the DRC. But in terms of efficiency, speed and effective delivery (by four states no less), the arrest (and, shortly, surrender) of these four individuals remains unprecedented in the Court’s history. Still, Maya’s points are worth highlighting:
A big day this is, but the consequences may be very unexpected. What implications does this have for Bemba’s due process rights? If his lead counsel is off the case, as he presumably is, who will take over? And how can that someone bring herself up to speed in a (presumably) short time? Or do we just say ‘tough luck’, since implicitly Bemba was aware of all this? But then what about the presumption of innocence which accrues to all four accused and so by extension also to Bemba? In short, there is a long road to travel from the delivery of arrest warrants to a (potential) conviction.
Also, one small quibble about your celebratory tone in relation to state cooperation. The fact that the Kabila government enforced an arrest warrant against an MLC supporter is further evidence of how one-sided the Court’s investigations in that country are. I am not the least bit surprised the Congolese authorities “found a way” to cooperate with the ICC — this is in line with almost ten years of practice. Opponents of the Kabila government are offered up to the Court on a plate, but there is complete impunity for Kabila apparatchiks. Let’s not forget that that’s one of the main reasons Bemba – Kabila’s main nemesis in the DRC – is before the ICC in the first place. A great day for state cooperation? I’m not so sure.
Sunday, November 24, 2013
Jubilee MPs pushing Uhuru into a corner
By ISAAC MASIDZA
Our President is under siege. The siege is not external; not from the ICC at The Hague, not from Shabaab terrorists who have laid siege on all Kenyans, not even from his political opponents in and out of government.
All these categories are known factors against which strategies can be formulated to thwart danger to himself and his government.
The siege that is threatening to cripple his administration is closer home, from his own backyard, the Jubilee alliance, the vehicle which propelled him to the presidency.
The legislative arm of government has put itself in a self-destruct mode. It has arrogated to itself roles way beyond those envisaged by the new Constitution.
True the dispensation gives MPs oversight authority. However, the same document does not allow them to trample on everybody else with impunity.
The first order of business for MPs when Parliament was convened was to redefine themselves as not “state officers”. The motive was so that their salaries and other (quite obscene) perks would not be subjected to public scrutiny.
With one stroke, Parliament had decided to neuter a constitutional Commission. The SRC was on its way to irrelevance.
Other constitutional commissions would come under barrage, most notably the CIC, which is charged with overseeing the implementation of the new dispensation. Today, its chair is still making noise, but he has been effectively neutered in the execution of his mandate.
The Judiciary, one of the three arms of government, has been in the sights of the legislators lately. Although Kenyans have issues with the turn of events at the Judiciary, it is a lack of decorum for MPs to purport to direct it on how to perform its mandate.
Why the President is under siege is that his signature must ratify or not, the many Bills passed by the Legislature. Some of them will be good, but most are puerile. Since his acolytes control both Houses, they put him in a tight position.
He must juggle between being President of the nation and appeasing the myriad competing interests in his alliance.
Indeed, on two occasions, he has publicly expressed his frustration; once when he said his hands were tied over the Revenue Allocation Bill, and more recently when he publicly berated Parliament for paralysing government business by constantly summoning Cabinet Secretaries over trivia.
Now that Parliament thinks it has settled who calls the shots in government, the voracious appetite of MPs has turned on the very people they feed on, the citizens. The VAT Bill was ill-conceived.
As Parliament casts the net wider in crippling real and perceived dissenters, they risk a rebellion, first by small aggrieved interest groups, which could snowball into a real backlash.
All governments are wary of the media and civil society. However, the most sensible maintain a symbiotic relationship with both, acknowledging that to open hostilities with either is unproductive.
Parliament has a duty to shield the President from all hostilities, external or internal. Ours has chosen to expose him on all fronts locally. Where it will all end up depends on when MPs will descend from their ego-trip.
Mr Masidza is a communications consultant
Monday, November 25, 2013
Anti-western rhetoric grows over ICC cases
The United Nations Security Council’s rejection of a resolution to suspend the International Criminal Court cases against President Uhuru Kenyatta and Deputy President William Ruto has fuelled anti-western sentiment.
The Security Council on November 15 rejected an African Union demand for the suspension of the ICC cases and political leaders have since criticised the decision, targeting the United States, France and Britain, three of the eight council members that abstained from the vote. (READ: UN rejects bid to stop Uhuru Ruto ICC cases)
“What happened at the Security Council is a testimony of Kenya’s genuine friends, who can stand with us at all times. We now know who we can work with and who we cannot,” said Mr Ruto, whose trial is going on at The Hague, during a rally on Saturday. (READ: Kenya furious at Security Council resolution)
National Assembly Majority Leader Aden Duale, an ally of Mr Ruto, accused the three nations of cowardice and being unfriendly. “It has clearly come out who our friends are and who we will do business with. Those who voted against us can look for business elsewhere because we shall not conduct business with our enemies,” he said. (READ: House to discuss relations with UK over Uhuru, Ruto ICC cases)
Other leaders asked President Kenyatta and Mr Ruto to consider severing links with the eight nations that abstained in the vote. “We will sit down and go back to the drawing board and see why we put our energies as a country to help countries which hold back their help when we need it. Development cannot be brought by leaders who are forever behind the dock,” said Nairobi County women representative Rachel Shebesh.
Leaders also called for President Kenyatta and Mr Ruto not to attend their trials at The Hague. (READ: Leaders criticise UN council)
“You should not attend The Hague trials. It’s hypocritical for western nations to abstain from Security Council voting thinking that our issues are not important yet we have devoted our time to fight terrorism, which is their issue,” said Kiambu senator Kimani Wamatangi.
Three British diplomats were last week ejected from a hotel in Eldoret where they were scheduled to meet members of civil society organisations in the region, an action that was condemned by the opposition Coalition for Reforms and Democracy. (READ: Ejection of envoy from hotel faulted by Cord MPs)
The anti-western rhetoric, as well as the risk of leaders failing to attend their trials at The Hague could lead to Kenya’s isolation on the international stage, joining nations such as Sudan and Zimbabwe. (READ: Plot hatched to have UK troops in Kenya kicked out)
EXEMPTIONS FOR HEADS OF STATE
African and international organizations with a presence in Africa said have called on the Assembly of State Parties to the Rome Statutes to reject special exemptions for sitting officials before the ICC.
“Human rights abuses by governments and armed groups remain one of the biggest challenges confronting people in Africa,” George Kegoro, executive director at the International Commission of Jurists-Kenya said in a joint statement issued in Nairobi. “Ideally, domestic courts will ensure justice for these crimes, but the ICC serves as a crucial court of last resort when they are unable or unwilling,” said Kegoro.
They said some African leaders have taken the position that the ICC is targeting Kenya, adding that the ICC prosecutor’s office acted to open an investigation after Kenyan authorities failed to respond adequately to post-election violence. (READ: MPs accuse Security Council of humiliating Africa over Uhuru, Ruto cases)
A recent opinion poll conducted by Ipsos-Synovate indicated that most Kenyans would like President Kenyatta to attend trial at the ICC after the court allowed him to be absent for some of the sessions. The poll showed 67 percent of those interviewed would like the president to attend court so that he can clear his name. (READ: Leaders dispute opinion poll, urge Uhuru to skip ICC trial)
“Britain and U.S. cannot just severe links with Kenya because our leaders are insulting them,” said economics lecturer Henry Wandera. “That can only happen if negotiations fail. Despite the bile against the nations, Kenyans should not worry so much about the issue. The sanctions may be real, but Kenya is too important for western nations that they cannot put restrictions on us,” he said.
Among those defending western nations from politicians’ wrath are opposition leaders led by Kenya’s former Prime Minister Raila Odinga, who has urged leaders to stop abusing western powers.
Government officials say the rejection of the bid means the fate of President Kenyatta and Mr Ruto lies with the nations that are signatories to the Rome Statute.
Kenya’s Foreign Affairs Cabinet Secretary Amina Mohamed said Monday that the AU would use the Assembly of State Parties meeting to present its position on the Kenyan ICC cases after UNSC snubbed its deferral request.
Amb. Mohamed said the AU will push for amendment of the Rome Statutes to provide for immunity from prosecution to sitting heads of state and government. “We are going to the State Parties meeting at The Hague. We will present the AU proposal for amendment of the Rome statute and are optimistic of a positive consideration,” she said in a statement issued from her office.
Amb. Mohamed said African states came together for the common good of the member countries and would meet to discuss the way forward after rejection of its petition to the UNSC. “The decision by some permanent members of the UN Security Council to abstain from voting on AU request for deferral of ICC cases facing President Uhuru Kenyatta and Ruto was a disappointment,” she said.
Amb. Mohamed said the AU was confident of garnering the support of a two-thirds majority of the Assembly necessary to effect the amendment in the interest of peace and reconciliation in the country.
The meeting’s general debate and scheduled session on the impact of indicting sitting heads of state will offer African and other governments important opportunities to affirm support for the ICC’s independent role in ensuring justice for the gravest crimes.
ICC IS NO LONGER PERSONAL, SAYS UHURU
Tuesday, October 15, 2013 – 00:00 — BY OLIVER MATHENGE
PRESIDENT Uhuru Kenyatta yesterday said that his impending trial at the International Criminal Court is no longer a personal matter. “I am no longer a private citizen observing personal obligations,” State House spokesman Manoah Esipisu posted on Twitter yesterday quoting the president. At the weekend the African Union resolved that Uhuru should not go to the Hague for his trial scheduled to start on November 12 until the ICC has responded to AU’s concerns. The AU has previously suggested that the cases of Uhuru and Deputy President William Ruto should be returned to East Africa, or should be deferred until they are no longer in power. “It was also decided that the President should not appear before the court until the concerns raised by the AU have been adequately addressed by the Security Council and the ICC,”
Foreign Secretary Amina Mohammed told a press conference yesterday, “The President’s case is due to begin on November 12 2013, in a month’s time. The AU made requests to the Security Council, first under paragraph 9 (iii) for a suspension of the proceedings until the end of the terms in office of the President and his Deputy,” said Amina, emphasising that Kenya would continue to cooperate with the ICC. “The AU asked that the trial of the President and the proceedings against the Deputy President be suspended, until such a time that the Security Council considers the request for deferral,” said Amina. The Daily Telegraph in the UK reported yesterday that “Western diplomats are preparing a UN Security Council resolution that would put the ICC case on hold” and that ” European officials have sought to adopt measures to ensure Mr Kenyatta is not forced to leave the country in the wake of the Westgate incident.” “Uhuru is not an indicted figure who is defying the court like Sudan’s president (Omar) Bashir.
He is someone who is working closely with the West in a region in chaos that needs to tackle a very worrying terrorist situation,” a senior European diplomat told the Telegraph. “A solution must be found that avoids a breakdown in relations with Kenyatta or the court’s authority.” Yesterday British High Commission spokesman John Bradshaw said, “the UK position has not changed and we welcome President Kenyatta and Deputy President Ruto’s continued cooperation with the court.” However he added, “We are keen to engage in further dialogue on issues of concern including at the ICC assembly of state parties in November.” An ICC spokesman said it could not stop the UN Security Council invoking international security issues to suspend the case. “The Security Council can adopt a resolution to impose a suspension based on the protection of peace and security in world,” said the ICC spokesman Fadi al-Abullah. “In that case it would be out of the hands of the prosecutor as the ICC has no role to advise the security council in these matters,” he added. Uhuru’s statement appeared to contradict his assertion in February during the TV election debate that the ICC case was a “personal challenge.” “It is my democratic right to present myself to the people of Kenya. If they so chose to elect me, it means they have confidence in me to continue doing my job as President while handling the cases,” Uhuru said during the debate.
In the last few weeks, efforts to halt or reject the ICC cases have intensified. Last week, Uhuru’s lawyer Steven Kay urged the trial judges to permanently stay the proceedings accusing the prosecution of interfering with the defence’s investigations. He told the court that three prosecution witnesses identified as OTP-118, OTP-11 and OTP-12, had contact Uhuru’s defence witnesses to subvert justice. On Saturday, President Kenyatta attacking the court and Western powers at the AU summit. “The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers,” Uhuru declared. This week, Kenya, through its permanent representative at the UN, will file a motion with the Security Council seeking the deferral of the Kenyan cases.
Last week, Uhuru met with US ambassador Robert Godec at State House and the ICC is said to have featured in the talks. The President has also sent an implicit warning to Europe over the ICC by delaying the accreditation of the new envoys for Germany, France, Italy, Austria and Hungary. Deputy President William Ruto’s trial continued yesterday in the Hague despite the AU resolution that sitting leaders should not be tried while still in office.
Angola Kritall Night Pogroms against Muslim in the Country: It Must be resisted relious faith is GOD given !Dos Santos has Overstayed in Power and has beome GOD Almighty in Angola!http://www.presstv.com/detail/2013/11/25/336677/angola-bans-islam-destroys-mosques/
Brookside eyes stake in Kagame-linked food company
•Inyange, Rwanda’s leading food processing company, is in talks with the Kenyan dairy firm—which is owned by President Uhuru Kenyatta’s family
•Crystal Ventures Ltd, an investment arm of ruling party Rwanda Patriotic Front that owns Inyange, confirmed the talks between the two companies although details on the deal remain scanty
Brookside Dairy plans to buy majority shares in a Rwandan food processing firm owned by President Paul Kagame’s party.
Inyange, Rwanda’s leading food processing company, is in talks with the Kenyan dairy firm—which is owned by President Uhuru Kenyatta’s family, to sell a 51 per cent controlling stake in a bid to expand its operations to East African region.
Crystal Ventures Ltd, an investment arm of ruling party Rwanda Patriotic Front that owns Inyange, confirmed the talks between the two companies although details on the deal remain scanty.
The deal underlines the acquisition appetite of Brookside—which recently completed the Sh1.1 billion acquisition of rival Buzeki Dairy, the maker of Molo Milk brand and its quest for a 20 per cent stake in Ethiopia’s milk processor, Elemtu Dairy.
“Talks between the two companies are ongoing although right now the information is still confidential,” said Mr Jack Kayonga, the chairman of Crystal Ventures’ board of directors.
Inyange, with current investment of up to $70 million, will lose the decision-making role should it retain 49 per cent.
The firm produces milk, water and juice, and it hopes to take this advantage to the region since it is one of the few companies in East Africa that manufactures the three products at one go.
The takeover is expected to build the company’s capacity in terms of expertise and financial resources in its quest to expand in the region.
Crystal Ventures would raise over $120 million (Sh1 billion) when the deal with Brookside is concluded.
The deal will be in line with Brookside’s expansion strategy that mainly hinges on buyouts which help it avoid fights with rivals in the race for market share gains.
Buzeki was Brookside’s latest takeover of a rival firm in a series that has seen it take control of Ilara, Delamere and SpinKnit (makers of Tuzo milk brand).
The acquisitions pushed Brookside’s share of the processed milk market to 44 per cent, cementing its position as Kenya’s largest dairy firm.
If successful, Elemtu Dairy will offer Brookside lessons as it seeks to enter Nigeria—Africa’s most populous country.
Brookside has presence in Uganda, Tanzania and Kenya.
Mr Kenyatta’s assumption of the presidency has injected fresh energy into his family’s commercial empire, putting a number of its units on an expansion mode that is expected to consolidate its position as one of the largest business dynasties in Kenya.
The business empire that is associated with Kenya’s founding president Mzee Jomo Kenyatta has in recent months made fresh bets in the hospitality, dairy, media and banking sectors.
Besides Brookside, high-end Heritage Hotels, Commercial Bank of Africa (CBA) and Mediamax Group, which owns K24 TV, Kameme Radio and The People newspaper, top the list of Kenyatta’s business empire that are revamping their operations.
The story first ran in Rwanda Today.
Tag Archives: william Ruto
Making sense of the Kenyan government’s reaction to UNSC vote on ICC deferral
The UN Security Council has rejected Kenya’s (and the African Union’s) request for a one year deferral of the case against President Uhuru Kenyatta and his deputy at the Hague. The two stand accused of crimes against humanity committed following the disputed elections in 2007. More than 1300 people died, and hundreds of thousands were displaced.
The US, UK, France, Australia, Guatemala, Luxembourg, South Korea and Argentina abstained to stop the deferral request. China, Russia, Togo, Morocco, Pakistan, Azerbaijan and Rwanda voted for a deferral. African leaders have in the last two years been on an ill-advised crusade against the ICC, terming it as a “race hunting” tool of “declining” Western powers.
Kenyatta and Ruto are innocent until proven otherwise, but their attempts to make their personal cases at the ICC a regional struggle of Africans against imagined neo-colonialists bent on usurping African sovereignty is a little misguided. The Kenyan case is different (Kenya is not Sudan or the DRC) and ought to have attracted special consideration from the court (see closing remarks below). However, despite its faults the ICC is all the continent has in the quest to hold its leaders accountable. I reiterate, murderous dictators in Africa and elsewhere should never be allowed to have internal affairs.
Here is the government’s total freak out response following the UNSC vote, with some comments from yours truly.
STATEMENT FROM THE FOREIGN AFFAIRS MINISTRY IN KENYA
Kenya takes note of the outcome of the United Nations Security Council meeting on peace and security in Africa, and specifically on the subject of the request for deferral of the Kenya ICC cases. Kenya wishes to thank China and Azerbaijan who, during their stewardship of the Security Council, have been professional and sensitive to the African Union agenda.
Wow, this is how bad things have become. That Kenya finds friends in states like Azerbaijan. Yes, this is the place in which the president recently announced the election results even before the polls opened. These are our new committed friends. We are going places.
Kenya wishes to thank the seven members of the Security Council who voted for a deferral and is particularly grateful to Rwanda, Togo and Morocco – the three African members on the Security Council – for their exemplary leadership.
Again, the only country we should be associated with on this list is perhaps Rwanda. I wish we could do what they have done with their streets, and corruption, and ease of doing business. But by all means we should not borrow their human rights record. Oh, and please let’s stay away from their variety of democracy.
This result was not unexpected considering that consistently some of the members of the Security Council, who hold veto powers, had shown contempt for the African position. The same members and five others chose to abstain, showing clear cowardice in the face of a critical African matter, and a lack of appreciation of peace and security issues they purport to advocate.
Letting the trial go on does not threaten peace and stability in Kenya. This is an empty argument. There will not be any spontaneous violence. Furthermore, the president is not the operational commander of the KDF. He is the Commander in Chief. He gets to issue orders from some room somewhere. Orders can be issued from anywhere. And remind me again how this trial impacts security ALL OVER AFRICA, other than by raising the cost of genocidal activities by African presidents?
Oh, and did I mention that the African Union Mission in Somalia (AMISOM) is almost entirely paid for by the European Union?
Inevitably, it must be appreciated that the outcome of this vote demonstrates that the Security Council does not serve the interests of a majority of its members and is clearly in need of urgent reform. It cannot be that a few countries take decisions that go against reason and wisdom in a matter so important to nearly one billion Africans.
One billion Africans. Really? I had no idea our president was this important of a man. One billion Africans. Many of whom starve to death; or die of treatable illnesses; or never make it to their first or fifth birthday because their leaders steal all the money meant for medicine. These Africans? Why should their names be invoked to protect the same leaders that have confined them to degrading penury for the last half century? Why, I ask?
Also, the claim that Africa is united against the ICC is false. We all know about the divisions that stalled the silly idea of a mass walkout from the ICC by African states.
The African Union, in one voice, took the unprecedented step of making a simple request to the Security Council, bearing in mind the security and stability it seeks to achieve on the continent. But the Security Council has failed to do this and humiliated the continent and its leadership.
Ahh. Now the truth comes out. It is not about the one billion Africans after all. This is about the humiliation of the African leadership. It is about protecting the sovereignty of a few inept rulers. Forget the one billion Africans. It is about their big men rulers who steal tax money and stash it away in bank accounts in the same Western countries they like to call names.
The Security Council has failed the African continent, which will have to make its own judgment in the coming days and weeks about how it wishes to engage with the Security Council, which obviously does not believe the voices of more than one quarter of its members is significant enough to warrant its serious and purposive attention.
The security council has failed African leaders. Not the African people en masse. Africans want to have elections without having to worry that voting one way or the other will result in their houses being torched or their mothers, sisters and brothers murdered or raped. They also want freedom from ignorance, disease and material want. Is that too much to ask?
The African Union’s request to the Security Council included its key resolutions at the Special Summit on the ICC. The important one for the Security Council to note was the one that categorically says that no sitting Heads of State or Government may appear before the ICC. Kenya regrets failure of important members of the UN Security Council to have due consideration of Kenya’s critical role in stabilizing the Horn of Africa and the Great Lakes regions, and their reckless abdication of global leadership.
Wait, are these important global leaders in the UNSC the same ones President Kenyatta termed as “declining powers”? What makes them important now?
Just for the record, I am part of the 67% of Kenyans who in a recent poll were in favor of the president attending court at the Hague. Having both the president and his deputy on trial will serve a great symbolic task of demystifying the Kenyan political leadership. The demonstration effect to all politicians, voters and criminal gangs alike will be clear: You cannot kill innocent civilians and get away with it.
In my view, the best case scenario is having both men attend trial and then get a not guilty verdict.
Kenyans are nowhere near ready to discuss frankly what happened in 2007-08 or the deeper issues of ethnicity and economic disparities that often mirror ethnic lines and how to deal with these issues at the national level. A forced conversation, especially one that has a foreign touch in the form of a court verdict, may result in unpleasant consequences. This would be a less than ideal outcome, but one that would not necessarily be catastrophic for the country. The constitution is clear on succession should either one or both leaders be found guilty and jailed.
In Machakos, No Raping in the Office ?Mkamba Corrupt officials were caught Raping in the Office!>
16.The majority hereby reconsiders the first part of the disposition of the Excusai Decision. In light of the Appeals Judgment, the majority now rejects the primary relief sought in the Excusai Request. Mr Kenyatta will therefore, as a general rule, have to be present for his trial. Any future requests by the accused to be excused from attending parts of the trial will be considered on a case-by-case basis. The Chamber’s consideration of any such request(s) shall include the following criteria:
(i) Mr Kenyatta will only be excused in exceptional circumstances and his absence will not become the rule;
(ii) the possibility of alternative measures will first be considered, including, but not limited to, changes to the trial schedule or a short adjournments;
(iii) any absence must be limited to that which is strictly necessary;
(iv) Mr Kenyatta, on each occasion, must explicitly waive his right to be present at trial;
(v) the rights of Mr Kenyatta as an accused must be fully ensured in his absence, in particular through representation by counsel; and
(vi) due regard will be given to the subject matter of the specific hearings for which an excusai to attend has been requested.
Click to access doc1689002.pdf
•murder (article 7(l)(a));
•deportation or forcible transfer (article 7(l)(d));
•rape (article 7(l)(g));
•persecution (articles 7(l)(h)); and
•other inhumane acts (article 7(l)(k)).
http://www.icc-cpi.int/en_menus/icc/sit … 90111.aspx
Let every one carry his own cross>
When Kenyatta was crowned as King of Bunyoro
When Justice Benna Lutta returned to Kenya in 1959 as a barrister from London’s Middle Temple, he found himself unemployable. There were no African law firms and none of the Whites and Asians were keen on his services. He headed west to Uganda which had a substantial number of people from his ancestors’ Wanga kingdom.
There, with two former fellow students from the UK, Abu Mayanja and Anil Clerk, he set up a law firm. Those were the heady days preceding independence.
Milton Obote, a legco member — the country’s colonial Parliament — and head of the Uganda People’s Congress, spent long hours at the firm’s chambers strategising for independence.
In time, Lutta’s firm drafted the UPC constitution and the party proceeded to lead Uganda into independence. Obote became very fond of Lutta and the sentiment was mutual.
But Sir Patrick Renison, the then governor of Kenya, while attending a routine East African Governor’s meeting at Government House at Entebbe, to which Lutta had been invited, asked the young lawyer where in Uganda he came from. Lutta told him he was a Kenyan. What was he doing in Uganda, then, Renison asked. You people won’t have us, Lutta told him, meaning the White establishment had no time for Africans.
To which Renison asked him to apply for a job at the Attorney General’s Chambers in Nairobi and Lutta obliged. He returned home to become a Crown Counsel at what is today’s Sheria House. Obote released him with monumental reluctance. If he had way, he wouldn’t have let his Kenyan friend go. But Lutta was adamant about returning home.
Come Uganda’s independence and Obote asked Lutta to do whatever it took to return to Kampala for the celebrations. Lutta did, as part of a large Kenyan delegation that was headed by Jomo Kenyatta. Luminaries like Jaramogi Odinga, Achieng Oneka, Joe Murumbi, JD Kali and others were in it.
After the celebrations, Obote arranged for his Kenyan visitors to visit Hoima, capital of the Bunyoro Kingdom, for a courtesy call on the king. The Kenyans were happy to accept. Here, Lutta takes up the story:
“When Obote asked us Kenyans to visit Hoima, we all assumed it was just another event of the festivities. We got there at about one o’clock and had lunch and we enjoyed various entertainment activities. At about 6pm, Sir Tito Owiny, the Bunyoro King, invited us all to enter the palace. I don’t think anybody else has said this. And the people who were there are all dead.
“When we got inside the palace, Sir Tito faced president Kenyatta and told him: ‘Go straight there. That is your father’s chair. Go and sit on your father’s chair.’ And it was not an ordinary chair. It was a throne, very ornate. Kenyatta did not ask any question or hesitate in any manner. He strode majestically there and sat on the throne. It is as if he knew everything.”
“But first, a man called John Kakonge was the one interpreting the proceedings. They were crowning Kenyatta as the King of Bunyoro. The Kenyan delegation sat bemused, not understanding what was going on. But Kakonge was translating, saying Kenyatta is being crowned King of the Bunyoro. It went on and on and on. Women were dancing. Drums were beaten. After all this, Sir Tito said to Kenyatta ‘you are not going back to Kenya because you are now the King of Bunyoro.’
“Kenyatta replied, ‘but I am also going to be King in Kenya.’ I remember those words very clearly. The Kenyan delegation seemed stunned. Anyway, it went on and on, until it was finally over. Kakonge was my friend. He had studied in India and on his return, he stayed with me in Kampala. However, all people who could corroborate this story, regrettably, are gone.”
But this was by every measure a festive occasion, far removed from the devastating experience that made Lutta resign his seat as judge of the East African Court of Appeal about 10 years later. Again, the story in his own words:
“The Court used to rotate its sittings around the East African capitals. We sat from Mondays to Fridays. One week in 1973, we went to Kampala for our routine sittings. As you know, by that time, Amin had overthrown Obote and was now ruling Uganda. On the Sunday before the following day’s sitting, the Chief Justice of Uganda, Benedicto Kiwanuka, who was a good friend of mine, invited us to his house. During that meeting, he told us that Amin was trying to kill him.
“Amin was trying to kill him because his soldiers had arrested a man called Michael Stewart, a British national, who was the general manager of the Madhvani Sugar Works in Jinja. Stewart’s lawyers had applied for a habeas corpus. Amin told Kiwanuka, before whom the case had come, not to release Stewart.
“Kiwanuka told Amin, ‘but look, Mr President, if they make out a good case, the law has to take its course.’ Amin said, ‘no! If you release him, you will see!’ Now, that Sunday night, Kiwanuka told me that he knew he was going to be killed. He was a staunch Catholic and he told me that the previous Friday, he had received what Catholics call ablution. Before you die, they pray for you and anoint you with oil to prepare you for your death.
“I offered him my car because I had driven all the way from Nairobi to Kampala. I wanted to smuggle him to Kenya. But he firmly refused. He told me, ‘if I have to die, I will die in Uganda.’ No matter how hard I tried to persuade him, he remained adamant.
“Nothing happened on Monday. On Tuesday morning, we went to court as usual. At 8.30am, we were dressing for the session when we heard a loud noise followed by some commotion. Six soldiers armed with guns burst into the courtroom. They got hold of Kiwanuka, carried him high and bundled him into a car waiting outside and sped off. To this day, I remember the number of that vehicle, UVH 171.
“There was a lot of commotion; people were wailing and shouting and crying. It was bedlam. There and then, we knew that they were going to kill him. The president of the court, the vice-president and me, decided that we should try and see Amin so that we could save Kiwanuka. We tried to see him but he was not available.
“We tried to see Mr Wanume Kibedi, the Foreign minister, but he was also unavailable. We went to the British High Commission and talked to Sir Richard Slatter, the High Commissioner himself and requested him to talk to his counterpart in Nairobi with an urgent request that he talks to president Jomo Kenyatta so that he could talk to his fellow head of state Amin. Sir Richard told us, ‘no, I cannot do that. This is an internal matter.’
“Now, we realised that there was very little we could do. We decided to protest by suspending sittings in Kampala. We returned to Nairobi. I said bitterly to myself, ‘if they can kill my friend this way, there is no point serving a system like this.’ I decided at once to resign from the court.
The other judges were refusing but I asked them, ‘how can you serve a system like that? The Chief Justice of Uganda…the Army people, they burst into the courtroom and take him away like that? No, no, no, I can’t serve a system like that.’
“We were told that what Amin did was to disembowel Kiwanuka. He removed the liver. When Amin killed people, he used to eat their livers. Kiwanuka’s body was not found because it was dipped in an acid bath. That is what happened to Kiwanuka.
“When I told this to my friends they would say, ‘oh, don’t be emotional.’ But my mind was made up. I wrote my resignation letter to three heads of state – Kenyatta, Nyerere and Amin. Kenyatta didn’t respond. I went to Dar es Salaam and told Nyerere of my decision. He agreed. He said we, too, were candidates to die because we had protested. Then he asked me what I wanted to do next. I told him I was going to Europe to get a job with the United Nations.
“Nyerere said, ‘why do you people always thinks of going to Europe? Why can’t you work in Africa?’ I told him I didn’t know of any African country where I could go and look for a job. He picked up the phone and called President Kenneth Kaunda of Zambia and told him about me. That is how I ended up in Zambia serving Kaunda as his legal adviser and doing some farming there until I returned home to Kenya.”