Sureta Chana, 58, has been a lawyer for 38 years practising in Kenya, at the International Criminal Tribunal for the former Yugoslavia (ICTY), and at present is the lawyer for victims in the first Kenya case at the International Criminal Court (ICC). Born in Kenya, she is a graduate of the University of Nairobi and George Washington University, from where in 1976 she earned a master’s of comparative law. She spoke with Tom Maliti from London about the first Kenya case at the ICC – The Prosecutor vs. William Samoei Ruto et al. – where she represents victims. In Part 3 of the interview she talks about the long term effects of the violence on victims, offers insights into international criminal law, and addresses what some Kenyans see as a contradiction: her representing victims today when earlier in her career she was a prosecutor during an oppressive period of Kenyan history.
What are some of the long term effects of the post-election violence on individuals and communities?
Well, they are still suffering from it. And a lot of people are still in the camps. They haven’t been able to get their land back or their homes back. And those living in those areas are not comfortable living in those areas. They feel any time it can happen. We can’t even talk of the long term yet because the situation after four years the situation is still the same. People are still frightened, people are still living in camps. So there’s been no resolution. There’s been no will of the government of Kenya to do anything about these people. I think by and large the victims have been ignored, completely and nobody has been highlighting their plight. This is one of the important things that I hope this case does, if nothing else is to highlight that the victims are exactly in the same position they were after the violence happened. A lot of them. And, no one, simply no one has done anything about it. This concerns the victims a great deal and, of course, there will be long term ramifications but they are still stuck in terror.
Assuming that Case One does not go to trial, what next for the victims?
Well, that’s it. If it doesn’t go to trial that will be because the chamber feels there is not sufficient evidence against these three and that will have happened after due process. But then the question will remain, who has done it to them if it’s not going to be those three who have been charged? So the crimes were committed. Nobody denies they were committed. Then we are back to the drawing board to find out who actually did it, who was responsible for them. So we are left with a crime-base without finding out who instigated and started the violence. It will be a great disappointment to the victims. But then it will be because there was not sufficient evidence. And as a lawyer, if I get that kind of a judgement from a responsible court like the ICC one simply has to accept that decision. And the victims will have to accept that decision that they’ve done it after all due diligence, which they are doing. But then the prosecutor has to look at it again. It’s back to the drawing board, saying well then who did it? And bring others to the court.
And if the case goes to trial, will the victims be satisfied with that, at least, you know, three people are being charged for it? Or will they want now other alleged perpetrators taken to court whether at the ICC or in Kenya?
Well, I think the victims will obviously be pleased that it’s gone to the next stage. There was enough evidence against three and they’ve been cleared to go to the next stage. That will appear to them that something is being done. As for whether anyone else will be taken to the ICC for these crimes will be a matter for the prosecutor. And, although I read in the press as well what you read, that he wants to take others to the ICC but I wouldn’t know what his intentions are or will he just leave it at the six. It is for the prosecutor to decide that and I have no idea what he’s thinking.
And maybe yourself as a lawyer, maybe you could share a bit about how it is you got involved in this case. As in is it some victims walked up to you and said, hey we know you are a lawyer and we would like you to take on this case?
No, no. The procedure of the court is that the victims can themselves, if they all agree, appoint a common representative. In the event that they cannot do that, then the court, upon the registrar’s suggestion, will appoint one for them. So the registrar of the court then went about with a competition and people applied. Like I applied like everyone else. And they thought that my qualifications were sufficient and then they put forward my name to the court and the court then obviously accepted it and appointed me.
And I see that in your formative years as a lawyer, you were at the Attorney General’s (AG’s) Chambers in the 1980s. How does working at the AG’s Chambers as a prosecutor compare with your time at the tribunal for the former Yugoslavia and now what you are seeing at the ICC?
Well, obviously a lawyer is a lawyer. So, the concept of law and things don’t change. The idea is to be able to pick them up. Of course, Kenya is a national jurisdiction. I was first prosecutor and then I had my own firm so I was defending. And I did a lot of work for the AG. And I prosecuted a lot of crime at that time. And then I went to the ICTY in The Hague. Where of course everything was very different and it was developing jurisprudence. It was international law, international criminal law and there were no trials, international criminal trials. I think the last were the Nuremberg trials. So everything was very new. The jurisprudence was new and there was a lot of development to do. So that was very interesting to be part of that. The developing jurisprudence, which now the ICC has piggy-backed on. So there’s a huge difference. At the end of the day a trial is a trial. You have the judge, you have the prosecution, you have the defense. And I suppose now at the ICC you have the victims, which is the innovation of the ICC. So while there are differences but ultimately one’s skills as a lawyer transcend all these tasks. Now you can see Kenyan lawyers are at the ICC, which is very good.
And there people here remember you from your time at the AG’s Chambers. Some of them say that they were detained during that time and you were the prosecutor at that time. Do you remember any of this?
Yeah, I think that was the time there was a lot of, at the time of Kenyatta, my memory sometimes fails me, there were a lot of students and university lecturers were picked up for sedition.
Yes, especially just before the 1982 coup attempt and just after the ’82 coup attempt.
That’s right. Before the ’82 coup attempt there was a lot of unrest in Kenya and a lot of politicking. And yes, the office at that time had a lot of litigation about sedition. Of course, there was no freedom of press. There was no freedom of anything in Kenya at that time. It was a very difficult time for everyone. But every time I would prosecute a case I would make sure that there is proper evidence for that because at the time sedition was crime. And that’s a crime on the Kenyan books. I can’t wish it away or say it shouldn’t be. But as long as somebody was being investigated, properly investigated that they were responsible then I would just put that evidence forward. Where have you been hearing this, it’s been a long time?
There is one individual in particular, he was a student at that time. So like everybody else he’s watching the hearings at the ICC and then he sort of was like, oh I remember her. He’s called Onyango Oloo and he has a blog called jukwaa.org. So he sort of remembers and he found it interesting that at that time you were following a certain line and now you are representing victims, which requires in essence a different kind of approach to issues.
I don’t think that’s accurate at all. And I do know this chap, Onyango Oloo, he still holds, it obviously happened to him. I mean I prosecuted hundreds of millions of cases but I do remember that name. That he feels very bitter about what happened during that time. I can’t remember the case or the evidence at all. It’s been such a long time ago. But I wasn’t following any line as such. I was a prosecutor. If you ask anyone. I was a very fair prosecutor. I would always make sure that if the police had got a confession by means that they shouldn’t I wouldn’t use the confession in court. I would say I don’t think this has been obtained properly for this to be submitted into evidence. So this would give them less incentive to try and get confessions by wrong means. At that time sedition was a crime in Kenya and it’s in the law books and the proof had to be beyond reasonable doubt. That certain people said certain things. Otherwise I would have to stop my career as a prosecutor and stand up and raise placards, which obviously there are enough people to do that. Sometimes you don’t really like what you do. But there is the law. But now Kenya has advanced so much. There’s such freedom of press. It’s fantastic.
Thank you for posing the crucial questions to Chana, about her role as a prosecutor during the Moi years, when she sent at least several dozens (her assertion of “hundreds of millions” seems a little hyperbolic) of Kenyans to jail for exercising their basic human and civil rights.
Her response is more than disheartening. It is tragic. In essence, she’s evading responsibility by pleading the Nuremberg Defense: “I was just following orders.” When she is, of course, deeply familiar with Nuremberg Principle IV, which speaks of “a moral choice” as being just as important as “legal” decisions.
Nuremberg Principle IV states:
“The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”.
Chana has spoken eloquently of the longing of the PEV victims she represents for apology from the defendants. Therefore she also understands that the intangible, immaterial word of remorse, acknowledgment of harm done, recognition of the harmed person as an equal human being, is of immeasurable value.
What a gift it would be to all Kenyans if she could lead the way, and set a precedent, for all those who have done terrible things in their public capacity, by making a full, unreserved apology to those she harmed. What a healing it might be for her own heart and conscience, as well as those she sent to jail.
We have a model for this, from the Truth And Reconciliation Commission in South Africa, in the hearing on crimes committed by Winnie Mandela. Excerpt:
http://www.pbs.org/newshour/bb/africa/july-dec97/mandela_12-4a.html
ARCHBISHOP DESMOND TUTU: You are a great person, and you don’t know how your greatness would be enhanced if you were to say, sorry, things went wrong; forgive me. I beg you.
WINNIE MADIKIZELA-MANDELA: I am saying it is true things went horribly wrong. I fully agree with that. And for that part of those painful years when things went horribly wrong and we were aware of the factors that led to that, for that, I am deeply sorry.
Full report:
http://www.pbs.org/newshour/bb/africa/july-dec97/mandela_12-4a.html
I,m strongly for the opinion that kenya should be an example to the world as far as impunity is all about. Sureta justice must prevail to console the victims.
Shailja, she gave the infamous Filbinger response, true that. I think it is a common reaction by jurists. At least she has reformed. Most jurists in Kenya have not and would only deserve to be hanged.
Shailja….your comment ridiculous. First of all your comment are filled with inaccuracies and twisted to fit an unfounded perspective of the CLR of victims. During the Moi years the crime of sedition was indeed a crime under the laws of the country.
The question should not be whether she prosecuted people for sedition but whether she was fair and professional in the conduct of those prosecution. Further more it should be noted that criminal justice has as its prime beneficiary the victims of criminality. As a prosecutor she must inevitably have had to prosecute murders, rapists, robbers etc . The victims of these crimes i am sure would not have objected to her prosecution merely based on the fact the she served as prosecutor during the Moi regime. It is only fair in making such strong comments to ask one self whether she acted out side her legal mandate or within it. Such unfounded accusations bring us no closer to answering that question.
The victims representative is the voice of the victims . Her understanding of legal systems both local and international is a benefit not a detriment. Further more Mrs. Chana was among the lesser known pro multi-party democracy advocates.
Brian Muganga: did Roland Freisler, did Andrey Vyshinsky act “inside” their legal mandate or outside? Did they not prosecute crimes that indeed were all in the statute books?
My comparison does not mean that I would side with Shailja Patel. It does not even mean that I disagree as to the merit, when you defend Sureta Chana. It only means that your “arguments” are entirely worthless, and not in the least thought out and reflected.
@Brian Muganga: The whole point about the Nuremberg bit is that a person shouldn’t simply say, “This was the law, by bosses made me do it, etc.” That is where “moral choice” comes in.
Patel is absolutely right. The lady, especially if she has truly reformed, as Eichener claims, should come clean. She ought to first deal with HER victims and then have the clear conscience that will allow her to do a job for the victims of others. Until she does so, the only conclusion one can make is that she saw money to be made, some new dot-points to add to her CV, and off she went.
Otieno, Patel and Eichener. It is very important to conceptually distinguish issues. There seems to be criticism of Ms.Chana’s time as a prosecutor during the Moi regime. Your comments seem to suggest that Ms. Chana spent her entire prosecutorial life conducting political prosecutions at the behest of the Moi regime.
Futhermore, the underlying assumption from your comments is that prosecutors in the Moi regime had the sole purpose of prosecuting political crime. This is manifestly without foundation in fact. Anyone who knows the history of Kenya would know how political trials were the facilitated by a few prosecutors and judges faithful to the politcal establishment of the time . And that there were a good number of officers in the state prosecutions office in Kenya who diligently prosecuted real crimes – murders, rapes, robberies, stock theft etc.
These were good men and women whose record attests to moral and professional conduct in the performance of an honourable service to the victims of these horrendous non-political crimes. Ms. Chana was among these honourable men and women – known for fairness and sound judgement in the conduct of such prosecutions. Her record speaks volumes of her stellar work as a prosecutor.
I find it quite disingenuous, and a trifle severe, to analogize her service as prosecutor to the momentous gravities of the Nuremburg trials. That such unfounded remarks, whose sole aim is to degrade the victms representative without purpose or provision, could form the focus of your considered discussion is profoundly unwarranted. Especially more so when the victims representative’s work so far has been exemplary in her articulation of victims views and concerns.
We must refrain from form baseless imputations that paint the wrong picture about the vicitims representative and the good men and women that served as prosecutors under the Moi regime.
Musyoka: You need to look at the records where the lady prosecuted people for “sedition” before you go on and on about how honourable she is.
All kenya culprits are play innocence Ruto beleives thatall the justice is based on imaginary and for him no violents to place in kenya land(hoolywood picture).Uhuru know the real victim and he is before the justice because ocampo minimised the job to favor the real culprit.Muthaura came to sleep in 5 star hotel after 100+sleplessnights.Ali did not act with regardless of a peace ful country kenya&he needed no Mathaura’s order for nothing happened.Kosgei has nothing to say for Ruto said thatall are imaginationNetwork so Chang’s cordwords were not real.Majority of displaced are men who have enjoyed life since independent they sold all that they grabbed fromour colony to grabb more &more some called them land tourist they do grabb and sale but they stand a place that they can call home but they wait to be offered for free by the system for they are danger for development they are corn people by habbit they dangerous for the well being of the nation.They should be given one week to go home and they will go home.