'Big Mama' and the Massacre: ICC's Reputation at Risk in Kenya

By Erich Follath

Photo Gallery: Fatou Bensouda's Battle for Justice Photos
REUTERS

Fatou Bensouda, chief prosecutor of the International Criminal Court, is doing all she can to put Kenyan President Uhuru Kenyatta behind bars. But the hurdles are high, and failure could spell doom for the dream of global justice.

The road to where she is today was long and rocky. But now, she is the chief prosecutor of the International Criminal Court (ICC), empowered by 121 countries to hunt down the worst of the world's mass murderers and put them behind bars, a criminal prosecutor in cases involving genocide and the world's public prosecutor. She is, in a sense, everyone's supreme conscience.

Fatou Bensouda, 52, and her team have taken the bold step of indicting 51-year-old Kenyan President Uhuru Kenyatta. But in this case, there is a stark contrast between their aspirations and reality. At the moment, Kenyatta's attorneys seem to have the upper hand. They have demanded that the case be dropped, arguing that there is no evidence to prove that their client is guilty. In mid-June, they managed to postpone the planned court date a second time, this time for four months, on the grounds that the prosecutor's office had not produced evidence on time.

Throughout Africa, as well as in the West, doubts are growing as to whether the case has a future at all. Daily Nation, Kenya's leading newspaper, called the case "a farce," while a TV commentator in Nairobi referred to it as "suicide on the part of the world court."

In recent weeks, Bensouda has been doing all she can to save the situation, spending inordinate amounts of time behind the bulletproof glass windows of her office in The Hague. She works late into the night, only to take yet another look at the files early the next morning. She is possessed of an iron will.

There is a great deal at stake. If the case against Kenyatta were to collapse, the ICC would lose what little authority it still has and would become a tool as useless as it is costly. And it isn't just a matter of the court's survival: The long-cherished dream of global justice seems on the verge of failure. In addition to the permanent ICC, other, temporary United Nations courts have likewise failed to produce successes.

Holding Commanders Responsible?

The Cambodia Tribunal, for example, a court established to try the individuals responsible for the Khmer Rouge genocide, is merely treading water. The International Criminal Tribunal for the former Yugoslavia (ICTY), by contrast, has managed to produce some convictions, but a judge at the United Nations war crimes tribunal in The Hague recently deplored the political pressure that allegedly led to the spectacular recent acquittals of senior Serbian and Croat officers. The judge said that the decisions called into question the principle that military commanders could be held responsible for war crimes committed by their subordinates. It is a concern that will soon be tested on Bosnian Serb general Ratko Mladic, with relatives of the Srebrenica massacre victims fearful that he will be set free.

At the ICC, prosecutor Bensouda is respectfully referred to as "Big Mama," because of her big heart and her authority. She knows what is at stake in the Kenyatta case -- for her, for the court and for the concept of a global court.

As a little girl, Fatou Bensouda already had a clear idea of what her destiny was: She wanted to fight crime. She also knew how difficult that could be. In the early 1970s, she accompanied her aunt several times to a police station in Banjul, the capital of her native Gambia, in West Africa. The aunt's husband had beaten her repeatedly. But the police officers refused to investigate her complaints, because it was felt that the master of the house had every right to beat his wife. Such crimes were left unpunished. It was something that Bensouda felt had to change.

As a teenager, she always went to the courthouse after school, no matter what case the court happened to be hearing. She obsessively took notes and later discussed the cases with her mothers. Bensouda grew up in a polygamous Muslim household, in which her father had several wives.

Later, when she was studying in Nigeria and Malta, she turned her attention to international law. A brilliant jurist, Bensouda was the first woman to become the attorney general, and later the justice minister, of Gambia. But conflict with the country's president, in a system that is democratic in name only, was inevitable. She resigned after two years and later began working for the UN, including a stint as a trial attorney at the International Criminal Tribunal for Rwanda, established to prosecute individuals responsible for the 1994 massacre there.

A Symbol of Progress

Bensouda was named chief prosecutor in The Hague in June 2012. The same year, Time included her on its list of the world's 100 most influential people. She is seen as a symbol of African progress.

Nevertheless, it is becoming clear that her influence is greatly limited. When she indicts powerful people, like Kenya's president and vice-president, she is dealing with more than just the high-powered lawyers they hire. She also faces intimidation by those capable of manipulating public opinion in countries racked by civil war and turning it against a court that operates far away from the scenes of the crimes it addresses.

The ICC also lacks the support of some of the world's most powerful politicians. Although most countries have submitted to its jurisdiction, the United States and China never joined the ICC. Both Iran and Israel are also unwilling to relinquish a part of their judicial sovereignty.

The court began prosecuting crimes against humanity 11 years ago, but its track record has been deplorable. This is partly due to sloppy investigations and the arrogance of Bensouda's predecessor, Luis Moreno-Ocampo, who once said: "We are changing the world, guys." So far, the ICC can boast of only one conviction, and that in a case relating to a second-tier defendant. In 2012, the ICC sentenced Congolese militia leader Thomas Lubanga to 14 years in prison for using child soldiers as cannon fodder. Arrest warrants have been issued against other butchers, like Sudanese President Omar al-Bashir and Ugandan warlord Joseph Kony -- but the men are still at large, because they are too important to be extradited.

The ICC is currently investigating eight cases, all of them in Africa -- a situation which has engendered criticism. The prosecution of crimes by the ICC has degenerated into "race-baiting," Ethiopian Prime Minister Hailemariam Desalegn said at the African Union (AU) summit in Addis Ababa at the end of May. In a resolution, the leaders of AU member states demanded that the case against Kenyatta be dismissed and remitted to the courts in Nairobi.

Bensouda calls the attacks "outrageous." Speaking with SPIEGEL, she pointed out that she herself is black and investigates cases without regard for skin color or nationality. "It is indisputable that Africans are being raped, displaced, tortured and held as child slaves by other Africans. Are we supposed to ignore that?"

Misplaced Optimism?

Besides, she added, the list of countries the ICC is currently focusing on also includes Afghanistan, Honduras and Georgia. "What offends me most of all is how quickly many concentrate on the words of the powerful, forgetting the millions who have no voice. We investigate without distinction of person or political rank."

"Big Mama's" staff members have rarely seen their boss looking as nervous as in recent days. Almost defiantly, as if to embolden herself, she says: "We will bring Kenyatta to trial here in The Hague, and I am very optimistic that we will achieve a guilty verdict against him and his vice-president, William Ruto."

But despite Bensouda's optimism, Kenyatta continues to reside in an opulent mansion next to the State House, the president's official residence in the Kenyan capital of Nairobi. Kenyatta is the country's largest landowner and he also controls its largest bank, not to mention a major hotel chain.

With an estimated net worth of $500 million (€378 million), Kenyatta is one of the 25 richest and most powerful men on the continent. Kenyan politics reflects the extent to which a handful of clans dominate the country. Fifty years ago, shortly after independence from Great Britain, a Kenyatta and an Odinga competed for power. In March 2013, nothing had changed except the first names of the contenders. The sons, Uhuru Kenyatta and Raila Odinga, had followed in the footsteps of their fathers, Jomo and Oginga.

The scourge of nepotism is compounded by ethnic division, in a country whose leaders are more likely to champion the interests of their tribes than ideologies or political platforms. They procure jobs and perks for their "blood brothers" and, if need be, they incite ethnic groups against one another, sometimes to the point of tribal wars.

The Kenyattas are part of the Kikuyu tribe, which makes up more than 20 percent of the population in Kenya and is the most economically successful ethnic group. Kenyatta did not run for the presidency in the December 2007 election, choosing to support Mwai Kibaki, a fellow Kikuyu, instead. After a highly disputed vote count, Kibaki was declared the winner and promptly sworn in. In the ensuing mayhem, members of the Kalenjin, Luhya and Luo tribes (US President Barack Obama's father was a member of the Luo tribe) exacted bloody revenge on the "imposters." The Kikuyu then struck back.

Divided by Hate

Before long, villages were fighting villages. In some "mixed" regions, it was street against street. It was only through the intervention of then UN Secretary General Kofi Annan that the situation settled down after a few weeks. But by the time the slaughter had ended, there were 1,100 dead with more than half a million people having been driven out of their home provinces. The country was divided by hate.

At the urging of a Kenyan judge, the ICC turned its attention to the instigators of the violence. In early 2012, the court in The Hague confirmed charges against Kenyatta and Ruto, his rival from the Kalenjin tribe. But can someone be locked up for this indirect form of culpability? And can prosecutors in the Netherlands prevail against men who are sufficiently cunning and unscrupulous to exploit racial hatred? In other words, can these crimes even be defined in legal terms? That is the existential question the ICC faces.

When it became clear that the two men were to be dragged before the world court, Kenyatta and Ruto devised a clever strategy: They joined forces to form a political alliance of convenience, the Jubilee Alliance. Before long, without any aspects of the 2012 massacres having been cleared up, they began campaigning for election together.

For much of the campaign, it looked as they had little chance, with Odinga -- the opposing candidate and a member of the Luo tribe -- maintaining a solid lead. But then Johnnie Carson, head of the Africa division in the US State Department at the time, publicly threatened "consequences" if the Kenyans voted the two men, who had been indicted by the ICC, into the country's highest offices.

The threat provided Kenyatta with fodder for his campaign. From then on, whenever he made a campaign appearance he would ask his "sovereign people" whether they should allow foreign powers to dictate to them their choice of national leaders. Kenyatta turned the election into a fight against foreign intervention and the "Western diktat." The overwhelming majority of Kenyans were unaware of the ironic fact that a London PR firm had developed the campaign strategy for Kenyatta -- and that British lawyers make up the bulk of his defense team for the ICC trial.

A Deaf Ear

Kenyatta won an absolute majority, with 50.07 percent of the vote. Observers noted that voter turnout was implausibly high, at 86 percent. Rival candidate Odinga suspected fraud and took his case to the country's supreme court, but it turned a deaf ear to his petition challenging the election results.

Of course, the West failed to make good on its threats to impose sanctions. Kenya's cooperation as a strategically important country in the fight against terrorism in Somalia and Sudan is too important to Washington, Paris and London, and they are also eager to prevent China from trumping the West in Nairobi. The new president has been self-confident recently, saying that he would cooperate with the ICC, submit to questioning by video link and, if necessary, even appear in person before the court in The Hague. His supporters refer to him as "Njamba," or "The Hero."

In The Hague, his adversary Bensouda says: "We want the trial to begin as soon as possible. And we deeply appreciate the witnesses' courage and willingness to make sacrifices. Nowhere else have they come under such great pressure as in Kenya."

Many witnesses live in the Great Rift Valley. The steep cliffs, which divide East Africa into two parts, open to form a kind of Garden of Eden, a landscape of volcanic cones, misty lakes and tropical vegetation that offers a habitat to rhinos, flamingos and myriad other forms of wildlife. Anthropologists see the region as a cradle of mankind. But in the first days of 2008, it was more of an Armageddon to residents in the Rift Valley towns of Nakuru and Naivasha.

A Raging Mob

"We lived here in peace and good neighborly relations with the other tribes for a long time. We rented our house from a Kikuyu," says Monicah Akinyi, a Luo woman. Her eyes are dull, rendered lifeless by sadness and desperation. "Then came the day when a raging mob of Kikuyu descended upon us with knives and machetes."

"I was pregnant at the time, awaiting our ninth child," says Akinyi, her voice faltering. "My husband and I worked at one of the big farms that grow roses for export to Europe. Our children played with the Kikuyu children." As the menacing mob approached, Akinyi took the children and fled to the police station. Her husband tried to help some friends and rushed back to the house. But he didn't get far before assailants swooped down on him with knives, dozens of them stabbing him again and again.

The mob raged for days. Akinyi wasn't even able to recover her husband's body. She was left with nothing but a photo a journalist had taken of her husband's corpse. She later learned that similar acts of brutal violence had occurred in other Rift Valley towns, as well as along the coast. Who were the culprits? Can the chain of command in what were clearly actions controlled by others be traced to Kikuyu leader Kenyatta?

"Today I only live for my children," says Akinyi, who looks much older than her 37 years. She was pleased when she heard that a woman in a faraway country wanted to bring the culprits to trial. But now she no longer dares to hope. "It all happened more than five years ago," says Akinyi. "I think the world has forgotten ordinary victims like us."

Translated from the German by Christopher Sultan

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1. optional
peskyvera 07/26/2013
And there are many other 'leaders' that belong behind bars.
2.
Itoka 07/27/2013
I cannot even begin to point out all the wrong things about this article; from semantics, falsehoods, not to mention being lost in translation. Very disappointing, Mr. Follath.
3. USA, land of the free and human rights
gerhard38 07/28/2013
While Bill Clinton was favouring the establishment of the ICC, it was one of G.W. Bushes first actions as newly elected president to prevent the ratification of the membership agreement claiming that he could not justify to have American soldiers caught up in "frivolous law suits" by people wanting to hurt the USA. Well, since Bradley Manning and WikiLeaks leaked footage of US war crimes in Iraq we have a fairly good idea about Bush's motives to avoid recognition of the ICC. In fact, George W. himself would be a suitable candidate for the dock in the Hague for his lies to justify the war against Iraq despite the objections and contrary to the findings of the Blix commission on WMCs. But unfortunately, this unsavoury president and his neocon helpers like a lot of other war criminals enjoy their happy retirement while a great number of American war veterans are left out "in the cold" proving that the US' talk of human rights and freedom is a charade or applies only to the rich and mighty.
4. optional
emmettpeabody 07/29/2013
I think what is amazing here is how distorted this piece is also, by placing a Black Female face to the court is to legitimize the witch hunt against Africans. It is a shame that "Big Mama" isn't using her time to go after the true criminals like the folks that she is working for the Western Europeans and Americans like GW Bush. Big Mama is only a pawn to hunt Africans under the guise of a Black face.
5.
cece 07/30/2013
This article so wrong on so many levels, but I will address a couple of things. If the Luhya, Luo and Kalenjin people attacked the Kikuyus, why is it only the Kikuyu and Kalenjin that are on trial? Why is it that the the chief beneficiary of the violence Raila is not on trial but Ruto then a minor functionary of his party ? Raila was not leading at any time leading to the elections. He did not have the ethnic numbers. The Gikuyu, Meru, Embu and Kalenjin voters add up to over 40% of the vote. There was no way Raila could beat those numbers. Big Mama was handed a skunk by Ocampo and seems to believe she can remove the stench.
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