In this first article in a two part series, the pros of holding the confirmation of charges hearings in Kenya are examined. Tomorrow, part two will address the cons of such hearings and present the conclusion of the authors.

On June 3, 2011, Pre-Trial Chamber II of the International Criminal Court (ICC) issued a decision requesting observations from the prosecution, the defense, and the victims on the desirability of conducting the confirmation of charges hearings in the two cases against the so called ‘Ocampo Six’ in the Republic of Kenya. The confirmation of charges hearings are set to start on September 1 and September 21, 2011 respectively. The decision of the Pre-Trial Chamber came as somewhat of a surprise as none of the parties had made an application to that effect. Professor Makau Mutua recently hazarded a guess as to why the Pre-Trial Chamber would deign to suggest that such sensitive proceedings could be held in Kenya. According to Mutua, “the Court seems to believe that real justice — and the fight against impunity — must be “organic”. Simply put, impunity is banished where the rule of law becomes part of the people’s zeitgeist.” [1]

The Chamber gave the parties until Monday, June 13, 2011 to submit their observations. All the defendants, with the exception of Henry Kosgey, opposed the proposal to hold the hearings in Kenya. Ambassador Francis Muthaura suggested that the hearings be held in Arusha while the remaining suspects insisted that proceedings should continue to be held at the ICC in The Hague.

Potential Advantages of Holding Hearings in Kenya

There are several advantages that would be realized by holding the confirmation hearings in Kenya. In the first place, holding the hearings in situ makes it easy for justice not only to be done but also to be seen (quite literally) to be done. In a country that has rarely seen powerful individuals in the dock answering allegations of lawbreaking against them, it would be cathartic not only for the victims but for the general public at large to see this happen up close and personal, as opposed to having proceedings taking place in a distant Western capital and only relayed on television monitors as happened during the initial appearance of the suspects in The Hague in early April.

Victim and civil society participation in the proceedings would also be assured. In April, while over 40 members of Parliament were able to travel to The Hague in solidarity with the suspects, no victims and only a handful of civil society activists were able to go, and the latter only happened to be there because coincidentally there was a study tour to the court that was scheduled for the same week. It would be a serious financial strain for civil society organizations to sustain a presence in The Hague for the duration of the confirmation of charges hearings, and yet without them to speak out for the victims, there is a risk of the airwaves being dominated by the suspects and their supporters with their proclivity to politicize and ethnicize the ICC process.

The second advantage of holding confirmation hearings would be increased levels of awareness of the relevance and operations of the ICC which have so far been fairly limited particularly at the grassroots level. Despite efforts by some civil society organizations to conduct outreach activities to explain the operations of the Court, there still exists a huge information gap among ordinary people that would start to be bridged with the Court’s physical presence in the country.

The third obvious advantage would be easy access to the proceedings for all types of media, especially mainly community media who have resource constraints and therefore cannot cover the proceedings directly from The Hague. Although the media coverage of the initial appearance in April was impressive with the main print and electronic media well represented by over thirty journalists, smaller media outfits could not afford the resources needed to send teams to The Hague. With in situ proceedings, information would be quickly channeled to the community through community media and hopefully reduce risks of distortion.

Fourthly, holding confirmation hearings in Kenya has a potential impact on the legal and political system nationally because it could show that justice can come for you no matter where you are. According to the Kenya National Dialogue and Reconciliation monitoring report many Kenyans are supportive of the ICC process and are happy that the ICC has finally embarked on the process to hold accountable those suspected to be most responsible. Over 70 percent of respondents in a national survey are confident that the ICC will prosecute those suspected of perpetrating violence.

These hopes sprout in place of widespread public disillusionment with the failure to complete investigations required to prosecute cases arising out of the post-election violence and the failure to establish a local Special Tribunal to investigate and prosecute high-level perpetrators. Nonetheless, 81 percent of Kenyans want other perpetrators of violence tried. They do not want them forgiven. In fact only 7 percent want them forgiven. This high number of Kenyans, 81 percent, who want perpetrators of violence tried, is a pointer that many Kenyans want to address the past. They would want to see a Kenya free of impunity and injustice. Holding the confirmation hearings against those bearing the greatest responsibility in Kenya would send the signal that the system is also potentially capable of prosecuting the rest.

Fifthly, politically, proceedings in Kenya would have the potential of altering the popularity of some of the suspects. As Makau Mutua puts it, “the ‘people’ need to see ethnic kingpins and alleged perpetrators of crimes against humanity held accountable right before their eyes,” and that “The ‘people’ need to “touch” and “feel” the texture of justice. They need to breathe in its civilising smell. The victims need to see the “fall and humiliation” of the high and mighty before the lords of justice.”

Finally, proceedings in Kenya would also prevent misuse of public funds to pay for government delegations to The Hague to support the suspects. This becomes especially relevant in light of reports that the hospitality budget of the Kenyan Mission to The Hague had been tripled in the last Financial Statement, ironically presented recently to Parliament by Mr. Uhuru Kenyatta, one of the ‘Ocampo Six,’ which led to speculation that the intent was to prepare the Mission to host more delegations during future proceedings. The public mood is that such wastage as the country saw as state resources were lavishly spent on the ‘Ocampo Six’ and their supporters during the April appearance should not be tolerated. In their submission regarding in situ proceedings, Kituo cha Sheria say two victims who support in situ proceedings state: “Having the hearings in Kenya would at least save tax payers money which would be better spent to help IDPs in Kenya.”

Njonjo Mue is the Deputy Director for Africa of the International Center for Transitional Justice. Rosemary Tollo is a communications consultant.

[1] Prof. Makau Mutua, “No Ekaterina, don’t try the Ocampo Six in Kenya,” Sunday Nation, 26 June 2011 – http://www.nation.co.ke/oped/Opinion/No++Ekaterina++don+t+try+the+Ocampo+Six+in+Kenya++/-/440808/1188928/-/13amkj8z/-/index.html