Ocampo’s integrity in question but Bensouda disowns leak

He had come to Kenya with  a smile and bravado, promising the 2007/2008 post-election violence victims and international criminal justice watchers he would make Kenya an example to the world.

But the actions of former International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo are now under close scrutiny after leaked documents, some touching on the dropping of charges against President Uhuru Kenyatta, question his integrity.  

The documents analysed by respected media outlets including Germany’s Der Spiegel, a French investigative website Mediapart, a leading Dutch daily NRC Handelsblad, Dars Spiegel, Black Sea and European Investigative Collaborations (EIC) among others have revealed how Mr Ocampo worked behind the scenes after leaving office in 2012 to have the ICC drop the charges against President Kenyatta.

President Kenyatta had been indicted for the violence that hit the country after the contested presidential election of 2007/2008 during which more than 1,000 people were killed and tens of thousands others uprooted from their homes. Deputy President William Ruto and radio journalist Joshua Sang were the other Kenyans whose charges were dropped by The Hague-based court.

Other Kenyans who were initially on Mr Ocampo’s list released in December 2010 but whose cases fell by the wayside were Mr Francis Muthaura, Mr Henry Kosgey and Mr Hussein Ali. 

HONOURABLE EXIT

An analysis of the documents recently released by Black Sea, which is among those involved in the ‘Court Secrets’ project, for example, shows how Mr Ocampo reached out to people within and outside the ICC to have the court give President Kenyatta “an honourable exit”.

The leaked documents, according to reports, indicate among the outsiders Mr Ocampo reached out to were former UN Secretary General Kofi Annan with a proposition to have the case against President Kenyatta withdrawn on account of weak evidence but to do so without embarrassing the court.

“I think it is time to find an honourable exit for Kenyatta,” he reportedly told Mr Annan who mediated the peace settlement between former President Mwai Kibaki and opposition leader Raila Odinga that ended the 2007/08 post-election violence.

According to the reports, Mr Ocampo suggested to Mr Annan to send an envoy to the ICC perhaps to implore the court to drop the charges against President Kenyatta and even has in mind what kind of a person Mr Annan should send. “An African, not a lawyer,” he suggested.

LEAKED DOCUMENTS

Mr Annan is reported to have vaguely responded: “We are indeed living in interesting times….let’s wait and see.”

Attempts to get a comment from Mr Annan were not successful as our e-mail enquiries had not been responded to by the time of going to press.

In a statement after media started reporting the contents of the leaked documents, ICC prosecutor Ms Fatou Bensouda on Thursday denied reaching out to her predecessor over the Kenyan case.

“My office has already stated, in response to media queries, that it has not initiated contact, sought advice or collaborated with the former ICC Prosecutor, Mr Ocampo, in relation to any of the situations or cases being handled by the Office or the Court since I assumed office as prosecutor. I have, in the past, personally made my position on this clear to Mr Ocampo and have asked him, in unequivocal terms, to refrain from any public pronouncement or activity that may, by virtue of his prior role as ICC prosecutor, be perceived to interfere with the activities of the office or harm its reputation,” Ms Bensouda said.

Mr Ocampo also did not respond to questions by Sunday Nation sent to him on Friday through his consulting firm, Moreno Ocampo LLC.

CYBER ATTACK

However, he had put out a statement on October 1 confirming there had been a cyber attack which he appeared to blame on his current job as a Special Advisor on Crimes Against Humanity to the Secretary-General of the Organisation of American States (OAS), Luis Almagro on preliminary investigations as to whether crimes against humanity have been committed in Venezuela.

“I can confirm I and some colleagues have been the focus of a cyber-attack. An investigation as to the extent of the attack and its perpetrators is underway and a criminal investigation is in process. I find notable that this massive hack occurs at a time when I have begun to investigate governments links to material support for terror and associated financing,” Mr Ocampo said in the statement.

“Not for the first time in my 35 years of investigating people in power, selective and out of context information has already been distributed by parties clearly opposed to me and my work, leading to false and misleading reporting in several media outlets. I will not assist in authenticating information associated with the hack nor break attorney-client privilege,” he added.

However, Mr Fergal Gaynor, who was the legal representative for victims in the crimes against humanity case against President Kenyatta, urged Mr Ocampo to come clean.

CRIMES

“To this day, the victims of the crimes committed during the PEV have not received true justice. (President) Kenyatta’s government continues its triple policy of obstruction of investigations by the ICC, non-prosecution in Kenya of those most responsible for the violence, and non-compensation of thousands… who lost all they had during the violence,” Mr Gaynor said.

“If, as has been reported, Ocampo contacted Kofi Annan in order to try to give Kenyatta an ¨honourable exit¨ in respect of the charges that Ocampo himself had applied for, that would be scandalous. There is clearly a public interest in knowing who Ocampo was lobbying on behalf of Kenyatta, and why he was doing so,” he added.

The other person Mr Ocampo discussed with the exit strategy for President Kenyatta from the crimes against humanity charges, the reports say, was Kenya’s UN Permanent Representative Macharia Kamau during a reception in New York in December 2013.  

“Later on, the diplomat explains that he has contacted Kenyatta’s brother, who is ready to meet the former prosecutor in New York,” Black Sea says in its report published on October 6.

Mr Ocampo turns from the prosecutor who had cross-examined President Kenyatta during the pre-trial hearings into a political cum legal advisor reportedly telling Ambassador Kamau of the strategy President Kenyatta should follow.

POLITICAL SOLUTION

“President Kenyatta should not look for a political solution because such (a) solution will affect his reputation and legitimacy. It will sound (like) he was guilty and is just abusing… his own power to escape from justice,” he allegedly told Ambassador Kamau.

“President Kenyatta should create a system to offer reparations to all the victims. In this way President Kenyatta could achieve a positive result and gain recognition inside and outside Kenya,” the former prosecutor reportedly opined.

Mr Ocampo’s behind-the-scenes manoeuvres, however emerges, started just six months after he left office in December 2012.

In perhaps the first of the documented interventions, Mr Ocampo allegedly went behind his successor Ms Bensouda and contacted a member of staff Sara Criscitelli who is said to have since left the court.

According to Black Sea’s analysis, Mr Ocampo tells Ms Criscitelli to denounce Kenya’s lack of cooperation and request a postponement of the case.

“Blame them (Kenya) before they blame the prosecutor,” he says. “We need to defend the office of the prosecutor. If they filed before us that the case should be dismissed for lack of evidence we will be badly exposed.”

DEFEAT

According to Black Sea, Ms Criscitelli is hesitant to take Mr Ocampo’s suggestion. 

“If we file something that suggests that a State can defeat the court simply by refusing to cooperate, that will be the death of the Court as a whole,” Ms Criscitelli reportedly wrote back.

It is alleged that in February 2013, Ms Bensouda contacted her predecessor perhaps seeking direction “before taking a decision” on whether or not to file for withdrawal of the case against President Kenyatta, claims the prosecutor has denied.

Leaked document

The contents of the leaked documents also show Ms Bensouda’s appeal to Mr Ocampo to avoid discussing the case was not heeded as the latter is said to have informed a third party that he was talking with Ms Bensouda “to organise an external group of prominent lawyers to review the evidence in the Kenyatta case. I don’t think you can prosecute a head of state with a weak case.”

LEAKED DOCUMENTS

The conversation, according to the leaked documents, took place at New York law firm Shearman & Sterling which reportedly offered to carry out the review.

With Ms Bensouda not responding to the offer, the reports claim Mr Ocampo again approaches Ms Criscitelli admitting the “sorry state of the Kenyan investigation,” according to Black Sea.

“Different people told me the evidence [in the Kenyan cases] is gone. Witnesses recanted their testimonies or refused to appear. I understand the difficult political environment, but when there is no evidence, a prosecutor does not go to court,” the former prosecutor tells his former colleague.

In that communication, he again proposes to Ms Criscitelli the appointment of an external panel of reviewers, to which she responded “I asked. So far not a problem.”

Ocampo admits he was hacked but refuses to comment on content of e-mails that cast aspersions on his character.

James Mungai, the rough cop who feared not man or God

Collapse of Kenyan cases hurt Ocampo’s ego and career