After the initial appearances of the six suspects, Mugambi Kiai, program officer with the Open Society Initiative for Eastern Africa and the Africa Governance and Monitoring Project, answered some questions about the hearings, reactions from Kenya, and issues to watch for in the future.
1. Now that the initial appearances have concluded, how would you assess the summons hearings?
MK: It was interesting watching the hearings as a lawyer coming from a common law tradition. First, I believe these individuals would have never gone to trial in Kenya because they come from the powerful class.
Second, the Court was very clear that the suspects were not being charged at this stage and ensured that the suspects knew all of their rights. In reaffirming defense rights, the Court is moving the discussion away from these hearings being politically charged.
Thirdly, for the first time, the Court gave a warning about the effects of the politically charged statement some suspects have been making. The Court issued a general warning to all six suspects about making dangerous statements and warned that conditions on speech could be imposed.
2. Does the fact they were summoned and appeared in Court demonstrate that they have faith in the independence and fairness of the ICC?
MK: I believe they were never going to contest their appearance at the ICC. This is demonstrated by the experience legal counsel each individual hired. Their lawyers are very familiar with international criminal law and the workings of the ICC. Unlike, Bashir in Sudan, who refuses to cooperate with the Court, these suspects intend to convince the Court that there is no case against them. The Court has also been sensible about their rights and ensuring they are fully engaged in the process.
3. How would you assess the reaction in Kenya?
MK: The reaction has been very interesting. I watched the proceeding from Nairobi, and the place shut down. Everyone was stopping their normal business and watching.
The reactions were mixed. A recent poll came out, which said 60 percent of Kenyans support the ICC process in Kenya. It appeared that this held true during the hearings – the majority of Kenyans appear to be supportive of the proceedings.
There have been no outbreaks of violence and no evidence of any spontaneous outrage. If there is a violent reaction, it is more likely to be planned. Even if people do not agree with what is happening, they are still engaged with the proceedings.
4. What are the “Ocampo Six” saying now that the summons hearings are over?
MK: They have not been saying anything yet. They all will be back in Kenya by Monday or Tuesday, so there may be more response then. The warning provided by the Court about dangerous speech could affect what they will say though.
5. Are there concerns about a specific misinformation campaign being carried out by those under investigation?
MK: One of the biggest concerns is the homecoming process. As soon as they arrive there will be a public rally. The problem will be the deliberate political comments about the Court, but I am grateful the Court has noticed this dangerous speech.
This is important because it recognizes (1) the speech itself is a factor on how we assess the process; and (2) it has effected domestic institutions. Speech cannot be how guilt or innocence is determined, and every institution deserves respect.
6. What are the main short term and long term issues we need to be alert to?
MK: In the short-term, we have to look forward to the next proceeding dates – a status conference April 18 and confirmation hearing September 21. We will be watching those hearings. Secondly, there is the debate on disclosure by the Prosecution and how that will play out. Thirdly, the admissibility challenge by Kenya of the case.
There is also a United Nations Security Council hearing today on the Kenyan proposal to block the ICC proceedings. In the short-term we will also watch to see if the politically-charged speech stops in light of the warnings from the Court.
In the long-term, the main issues will be cooperation by Kenya and remaining engaged in the process. In addition, there will be elections in 16 months, and it will be interesting to watch the impact of the ICC investigation on these elections. In Kenya, there is a perception that people will now be held to account for their actions. Even if the ICC suspects are set free, it has changed politics in Kenya.