For the first time, there was voting to elect the Prosecutor of the International Criminal Court (ICC) last Friday. This was the culmination of a months-long disjointed and flawed process that failed to achieve consensus on the appointment of Fatou Bensouda’s successor by the Assembly of States Parties (ASP) — the 123 state signatories of the Rome Statute, the ICC’s founding treaty.
The ultimately victorious candidate, Karim Khan, was included much later after objections by, among others, the Kenya government, against the original shortlist.
While refraining from supporting particular candidates, international civil society organisations highlighted their grave concerns on the repeated delays and continued lack of transparency around state parties’ consultations to elect the prosecutor which did not respond to their calls, even last week, to prioritise a stringent vetting process to ensure that the successful candidate met the Rome Statute requirement of “high moral character”.
Mr Khan might, hence, be seen as having been elected not on the basis of a clear process and independent assessment of candidates’ merits but individual state preferences or perceived political arrangements.
Several weeks ago, 22 African NGOs, among them AfriCOG, circulated a letter to the ASP outlining their concerns about Khan, who represented Kenya’s Deputy President William Ruto and former Head of Civil Service Francis Muthaura as defence counsel in proceedings before the ICC.
They argued that his potential appointment was problematic on the basis of his conduct in the Kenya cases. Among other things, they questioned his actions relating to his witness Meshack Yebei.
The organisations queried Khan’s silence on Mr Yebei’s disappearance and eventual murder after he had initially raised the alarm when a body mistakenly thought to be his was discovered.
Responding to an article by the Kenyan NGO Journalists for Justice, he maintained that he took all the necessary measures to ensure Yebei’s safety. However, the forum to address this should have been located within the ASP’s selection process.
The organisations also stated that Khan’s candidature raised potential conflicts of interest for his role. The case against Kenyan national Paul Gicheru relating to witness interference in the Ruto case is ongoing, though Khan has stated that he will recuse himself.
Furthermore, Khan’s over-enthusiastic identification with his clients’ and Kenyan government’s aggressively politicised anti-ICC stance and his public disparagement of those who stood in support of the case, including the victims’ counsel, seemed to exceed the legitimate bounds of his role as defence counsel.
Khan attended a ‘thanksgiving’ political rally held by President Uhuru Kenyatta and Dr Ruto in April 2016 to “celebrate” the “termination” of the Kenya cases.
The statement was despite three existing ICC warrants of arrest for suspects of witness interference in the two cases and the cases’ continuing pendency. And instead of contradicting the President’s anti-ICC views, soon after the declaration of a mistrial in the Ruto case, Khan reinforced the contentious characterisation of the cases as a Western-led attempt at bringing regime change to Kenya.
Sadly, reminiscent of its repeated failures to staunchly resist attacks on the integrity of the Rome Statute during the Kenya cases, the ICC has, once again, fallen short. The opacity of the election at the ASP has resulted in the absence of a forum to effectively air and respond to concerns regarding the candidates.
This has led to the flourishing of rumours, information leakages, horse-trading, speculation on the intervention of powerful geo-political interests and a lingering consciousness that this is not a process the ASP presidency can be proud of. It will have repercussions for the legitimacy of both the ICC and Khan.
Hobbled by the very predictable need to recuse himself in important current and possible future cases on the Kenya situation, the new ICC prosecutor faces an uphill battle in winning the support and confidence of critical sectors of the court’s stakeholders, which could have been avoided by a clear and irreproachable process.
Ms Otieno is the Executive Director of the Africa Centre for Open Governance (AfriCOG).
Kenyans for Peace with Truth and Justice (KPTJ)