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Luis Moreno Ocampo tried to provide Uhuru Kenyatta an “honourable exit” from his ICC case

4 October 2017 - 23:10

After his tenure as chief prosecutor of the ICC, Luis Moreno Ocampo tried to provide an “honourable exit” to Uhuru Kenyatta from his case in The Hague. This is what the leading Dutch daily NRC Handelsblad alleges in an article published Wednesday night.

NRC is part of a consortium of media from different countries that say that they have had access to 40,000 leaked ICC-related documents. Journalists For Justice has not seen the leaked documents.

NRC concludes that in 2013, after “Uhuruto” won the elections, Ocampo lost faith in the prosecutions which he had initiated himself. The Office of The Prosecutor at the ICC led by Ocampo’s successor Fatou Bensouda had to admit in front of the judges in The Hague that it was losing its witnesses, due to intimidation or worse.

Ocampo decided that a solution had to be found that would limit the damage to the reputation of everyone involved with the case. But Kenya would have to take the blame for the failure of the two trials, not Ocampo or Bensouda.

In October 2013, NRC says, Ocampo wrote an email to Kofi Annan, who had been the chief mediator during the 2007/08 post-election crisis in Kenya, saying: “It is time to look for an honourable exit for Kenyatta.” NRC alleges that Ocampo proposed that Annan send an envoy to the ICC: “An African, but not a lawyer.” Annan proposed to wait and see.

LMO is said to have interfered with the work of his successor by writing to one of her staff members, Sara Criscitelli, saying: “Several people tell me that the evidence is gone. […] When there is no evidence, a prosecutor does not go to the judges.”

A month later, according to NRC, Ocampo suggested to the Kenyan ambassador to the United Nations (UN) that Kenyatta’s accountability could be dealt with “in an alternative way”. Kenyatta should initiate reparations for victims.

In a reaction, Bensouda’s office said to NRC that she was “not familiar with Ocampo’s plan for an exit strategy” for Kenyatta.

LMO himself did not want to respond to the allegations, NRC says.

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In hindsight, Ocampo's assessment has sadly proven to be correct. It is very laudable that Thomas Verfuss has provided this easily acccessible English summary of the Dutch original (by Hanneke Chin-A-Fo). The crucial sentence is Chin-A-Fo's translation „Ik denk dat het tijd is om een eervolle uitweg voor Kenyatta te zoeken.” It may be hard to stomach to see an adjective as "honourable" associated with an accused of the gravest crimes against humanity. But Ocampo knew - as every other jurist inside the court - that Kenyatta, while by far not innocent, was not one of the primary responsibles for the larger part of tge PEV. He was - correctly - indicted for his implication in the financing of the counter-violence. That was and is bad enough, but we must see that he here stands symbolically for the PNU and for the financers of violence, as well as symbolically for Mungiki. Both Ocampo and lateron Besouda has underestimated the criminal resolution and ruthlessness of the entire Kenyan state - at large - and (especially!) of the Kenyan judiciary, serving the whim of the PEV culprits and protecting them actively. The ASP later learned all about it. Under these conditions, Ocampo may simply have been more cynical than Bensouda. He saw and correctly assessed the incompetence of the OTPs Common Law trial lawyers (foremost Cynthia Tai, a failure on wheels), the lack of efficient witness protection (not his responsibility, but that of the Registry), and the total professional failure and actually counterproductive role of the entire Kenyan journalism (all media sans exception). And apparently, when making his recommenadation, Ocampo guesstimated that the Chambers would not issue an arrest warrant against Kenyatta and Ruto, like the had against Bashir (which warrant in hindsight would have changed the entire game, but would also have jeopardized the very existence of the ICC - a gamble with a very high risk thus). There was great insecurity in State House before the hearings, and it was debated internally whether Kenyatta should at all run the risk of going to The Hague, only maybe to be confronted with a sealed arrest warrant. Ultimately, the more "courageous" party won the discussion, over the more cautious warners, and he travelled. Maybe also because he had additional secret information from a mole inside OTP (namely, that no such warrant had been applied for), but that speculation would be a topic and a wager for another day. All by all, Ocampo's frank recommendation was a straightforward confession of failure. But an honest one, all the more since he intended to help the victims, as a very small outcome of the trials at least ("dat Kenyatta wat hem betreft op alternatieve wijze verantwoording kan afleggen. Hij zou kunnen beginnen met schadevergoedingen voor de slachtoffers."). Bensouda has done absolutely nothing for the victims, just see the periodical reports on the court's case website.