By Tracie Alymer

Kenya is a very interesting case, which impacts upon the rest of the world in a way that could never possibly be imagined. As Kenya is an African country, one would never think that it could show itself in such a way. Firstly, however, I will explain very briefly how the Kenyan case ended up at the International Criminal Court in the first place. Then, I will show similarities between the Kenyan and Australian cases.

Kenya has elections in a similar manner to that of Australia – once every few years, the Kenyans go to the polls. It was largely based on the concept of democracy driven by Western countries. This is because much of Africa has been invaded by Western countries such as the UK, France, and Belgium in previous centuries. In fact, much of the infighting that has occurred within many African states has been because of colonialism.

As an example, Rwanda was invaded by Belgium, which caused no end of trouble between the Tutsi and Hutu, to such an extent that genocide occurred in 1994. The International Criminal Tribunal of Rwanda ensured perpetrators did not get away with the criminal acts perpetrated from the leader (and others) at the time, Jean Kambada. Race relations in Kenya have a very similar context.

During the 2009 elections in Kenya, bloodshed ensued. Approximately 1000 people were murdered and many more were tortured and/or raped. Race relations spilled over. Since Ruto and Kenyatta are from different races, their treatment of each other created victims. While the enormity of the bloodshed were not on the same degree as with Rwanda, it was still bloodshed and there were still victims. Since not one authority in Kenya was willing to consider the atrocities committed, NGOs decided to push the ICC into action.

Initially, the ICC took tentative steps to investigate. They had received information that helped the case along – otherwise, it would have been thrown out quite some time ago.

When Ruto and Kenyatta banded together for the 2013 elections, it was clear that they would win the next elections – by hook or by crook. The atrocities committed previously weren’t going to stop them from running the country.

From all appearances, they have done some beneficial things for the country. They have shown themselves as something to be reckoned with at the African Union, and pushed their way into tentative legitimacy with the rest of the world.

Ignoring what happened at the 2009 elections ticked the boxes when it came to jurisdiction at the ICC. Initial evidence collection definitely showed a case, and there definitely was public interest. When Ruto and Kenyatta banded together, all of a sudden witnesses changed their testimonies. Other witnesses felt fear in adding their voice to the ICC case. Others disappeared. Still others were found murdered.

While for a few years the Kenyan case had relevance and legitimacy at the ICC, extensive corruption has forced the ICC to try to consider other methods. Kenya stopped cooperating. They refused to let ICC investigators come into the country. They acted like the corrupt individuals that they are, and then pulled publicity stunts denigrating the ICC as illegitimate.

Their acts of publicly slamming the ICC were similar to what the USA did back in 2001, when George W Bush ‘unsigned’ the Convention implementing the ICC. As Bush knew that he could have been arrested with his invasion of Iraq, he decided that he had to protect himself from it. His excuse at the time was that he didn’t want any US soldiers to face the ICC, when in reality it would have been him targeted. He knew the Iraq war was illegal (as per many articles written by Professor Gerry J Simpson), and he also knew that Article 27 of the Convention would not grant him immunity. So his administration carried on and on, trying to create the effect that the ICC had no standing. As many within the international community aren’t that happy with USA, this denigration somewhat had the reverse effect. More than 120 nations have ratified the Convention. One is Kenya. Another is Australia.

The long-term effect of Kenya publicly denigrating the ICC, and pushing the African Union to also denigrate the ICC, showed weaknesses on both sides. Kenya is now known as a bully within the African Union. They manipulated other African nations to start leaving the ICC (only one so far has taken the bait). They even tried to push for a change to the Convention, to give immunity to leaders until after they left office. This didn’t work. Article 27 still exists.

A few years ago, an amendment to the Convention was agreed to. This amendment is to allow the Court to accept original testimonies, if later testimonies were changed due to duress. The Convention previously held that testimonies had to hold up to the prosecution and the defence. The amended version means that duress can be considered.

This change in the Convention came at a time when the Kenyan case had just started. There were at least five testimonies that were changed due to duress. The prosecution requested for the original testimonies to be held as true. Initially, back in July 2015, the Court agreed.

The defence challenged this, stating that the amendment was not made until after the testimonies had been changed. In addition, they claimed that there was no case to answer. They deliberately set about ensuring that the case would fail, even though they had signed the Convention.

Unfortunately, in February 2016 the ICC Court of Appeal agreed with the defence, and the amended testimonies – changed due to duress – were accepted over and above the original testimonies. Then, last week, the ICC agreed with the defence that there was no case to answer, due to extensive corruption.

Impunity was then questioned. If a leader commits atrocities to their own people, shouldn’t they also be shown justice? Why did the case fail so horribly? Why aren’t these people who commit atrocities and corruption convicted? The victims were crushed by this decision, and understandably so.

It appeared that Kenya’s influence on the African Union and other nations became predominant within the international community. It didn’t help that the ICC has been known for quite some time as being politicised – only working within Africa for the benefit of Western countries alone was the reasoning given by the African Union. The fact that Georgia is now under investigation hasn’t swayed general opinion within Africa. They wanted something much more meatier to show that the ICC wasn’t solely targeting Africa.

Then, within the last few days, a light shone on the case. It was found that the case could be reopened at a later date, with more evidence. In addition, those crying for justice for the victims were finding other avenues. This case isn’t over by a long shot!

The reason why I gave such a detailed account of Kenya is because the events are similar to those in Australia. Kenya has done their dummy spit, and the world is taking note.

Australia also has their dummy spits. What the Australian government doesn’t realise, however, is the type of evidence that the ICC has against them. Kenya’s evidence relied heavily upon witness statements, in relation to the atrocities occurring during the elections back in 2009.

For Australia, the ICC will have witness testimonies, but considering the nature of Australians there is a lot of doubt over how government authorities can force a witness to change their testimony, especially when Australian churches, mosques and other religious facilities will give sanctuary to anyone who testifies. Kenya doesn’t quite have this. Murder is being committed no matter where the witness is.

Also, the amendments hadn’t kicked in for Kenya, but they definitely will for Australia!

The ICC has other evidence. Personally, I have given the ICC the Immigration Department manuals and guidelines (twice! And a friend helped me with a third revision of the manuals and guidelines recently). In several areas within the Detention Services Manual in particular, it states that the Minister is responsible for everything that happens within the detention centres. There is no denying how powerful the prosecution’s case will be when they continually highlight this within trials. Both Scott Morrison and Peter Dutton won’t be able to find any defence when this keeps coming to light.

In addition, photos of Manus Island were sent to the ICC, showing how poor the facilities are. The ICC has been updated, with more photos and more witness testimonies. Each and every time someone has come to me with evidence, it has been sent on to the ICC. The prosecution’s case is growing, and there’s not much the defence can do about it. There is even evidence on how much control Australia has within the offshore detention centres. Of course, I happily oblige with sending all evidence on (as do others).

The number of witnesses is also growing. So many people are determined to see several Australian politicians at the Hague. Many are looking forward to seeing Morrison and Dutton in particular at the dock of the Hague. It’s what gives people hope, and during these times that’s exactly what’s needed.

To conclude, the teething problems of the ICC are known and well understood. The prosecution is not the problem here – international politics are. While many of the weaknesses need desperately to be ironed out, the Prosecutor is doing her utmost to reverse the politicisation of the Prosecutor’s office. She is quite independent. This has been proven in dramatic fashion with Kenya, when she became driven to find justice for the victims.

The real problem here is the fact that the ICC has to deal with international politics in order to obtain their funding. If funds came from other sources – predominantly from the UN, for example, or from other independent areas – then I doubt there would be the degree of politicisation that there is at present. Having to deal with the dummy spits of leaders who think they are above the law is one hell of a bug bear. There should be another way to sort out the atrocities committed, without leaders resorting to dirty tactics. They mishandled the sovereignty of their nation – they should deal with the fallout.