Miguna Miguna - Ocampo six face daunting task - The Star

Louis Moreno-Ocampo struck like an earthquake on December 15. After months of stealthy investigations, media speculation and unbelievable comedy by nearly all the six suspects, the innocent victims of the crimes against humanity committed in Kenya between 2005 and 2009 are about to get justice. At long last the perpetrators of heinous crimes will be called to account.

The era of impunity is coming to an end. But to end impunity, the perpetrators must be publicly shamed and punished severely. There should be no deals, no plea bargains and no retreats. Both architects and apologists of impunity are calling for "national healing and reconciliation." But no healing or reconciliation can occur without truth and justice.

Victims of crime cannot forgive perpetrators by force or through threats, intimidation or extortion. To be forgiven, the perpetrators must voluntarily, completely and publicly confess all their crimes. Even then, the victims have the option of either forgiving or not forgiving. In the present context, the confessions must occur at The Hague; not at funerals or goat-eating ceremonies.

The political and emotional craters Ocampo has left in his wake are gaping. The reverberations and aftershocks will be felt for many years to come. Those who doubted the Argentine's resolve are in deep shock. He promised to conduct his investigations secretly and he did. He undertook to publicly disclose the names of his suspects and he has delivered. He had undertaken to present two cases before the ICC Pre-Trial Chamber II by December 15.

Clearly, he has discharged his undertakings efficiently. His speed, professionalism and conduct put to shame the empty blaster by many Kenyan lawyers. Those who expected the investigations to take 100 years might be disappointed; but most Kenyans are elated. At the end of the day, that's what matters.

On July 2, 2009, I was part of the Kenyan delegation to The Hague. During our meetings with Ocampo - and virtually at all subsequent meetings with the Kenyan government - he was categorical: "If Kenya fails or refuses to act on the perpetrators of the post-election violence, I will. The most responsible perpetrators of the crimes against humanity that occurred in Kenya will be punished. I will do justice to the victims."

He promised to act expeditiously before the next election cycle begins. He has done so. He promised to make Kenya an example on how not to mismanage and transform elections into an excuse for mass killings, rapes and displacement of innocent civilians. He delivered on that, too.

The allegations Ocampo has made against the six individuals, which are yet to be proven, are extremely serious. However, it is irresponsible for any of the accused, their lawyers or supporters to claim that Ocampo has relied on "false witnesses." Ocampo has submitted a 160-page summary of his case and thousands of pages of supporting evidence. He has previously successfully prosecuted people accused of genocide, war crimes and crimes against humanity - both in Argentina and at The Hague.

The individuals he prosecuted and put away for life in Argentina were more powerful, ruthless and richer than their Kenyan counterparts. They also had millions of supporters baying for Ocampo's blood. But he pursued his cases relentlessly and efficiently until he got convictions and long sentences. So, threats, intimidations, demonstrations or propaganda by the accused don't bother the Argentine.

Those who were privy to the crimes committed shouldn't tell us how innocent the Ocampo Six are; they should be filing alibi notices and preparing to testify on their knowledge of the crimes.

The positions the accused persons hold or have held in society are irrelevant and immaterial to the charges. Of course; the most responsible for crimes against humanity must have held powerful, positions. That's how orders are given and obeyed.

I sympathise with William Ruto, Uhuru Kenyatta, Francis Muthaura and Hussein Ali more than the other two suspects. They should be careful not to aggravate their situations by issuing reckless threats. They should retain competent and experienced counsel; not continue with the silly political comedy they have been auditioning. Kenyans aren't impressed by their churlish acrobatics. Putting out full-page advertisements in newspapers won't help either.

Organizing goat-eating strategy sessions, holding demonstrations with Mungiki members or trying to use Parliament won't work. Trying to use the NSIS is as useless as trying to swim across the Atlantic. Nothing they do in Kenya can stop Ocampo now.

No Parliamentary resolution can influence the UN Security Council or the ICC Pre-Trial Chamber II. If anything, such moves will most likely meet with opposite reactions.

They can obviously assert their innocence and even promise robust and vigorous defence.

However, one cannot credibly allege that the investigator has no evidence against him and is only being used by his political opponents. It's illegitimate to claim that the investigator has only relied on some "tainted" evidence from "bribed" witnesses.

To advance such allegations imply that one is privy to everything the investigator has done; all evidence he has collected; and all witnesses he has interviewed - locally or abroad. It would also mean that one would prefer to have ironclad evidence against him.

That's nonsense. If Ocampo's case is so baseless, the accused should be celebrating; not trembling.

From all available information, Ocampo conducted his investigations independently. He has not used the inept Kenya Police. He hasn't used the discredited judiciary. On what basis, therefore, are some of the accused claiming that they have been targeted? What would Ocampo's motives be? -

The Ocampo-Six should be busy preparing their defence; not organising demonstrations. In all likelihood, Ocampo will get his order to proceed.

Meanwhile, the six musketeers should be relieved of their public responsibilities. Practical mechanisms must also be in place to prevent them from conspiring to defeat the course or end of justice.

The non-communication order is a standard requirement worldwide.

Miguna is the PM's adviser on Coalition Affairs.

The views expressed here are his own.

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