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Gbagbo’s acquittal suggests confusion and dysfunction at ICC

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The international community has reacted with shock to the International Criminal Court’s (ICC) acquittal of former Ivorian leader Laurent Gbagbo and one of his former ministers, Charles Blé Goudé.

Gbagbo was president of Côte d’Ivoire from 2000 until 2010. Blé Goudé was his minister of youth. In 2010, Gbagbo lost an election to Alassane Ouattara, but refused to concede power. In the resulting months of violence, more than 3000 people were killed.

Gbagbo was charged with designing and executing a common plan to hold onto power through violence directed at civilians. His case was merged with Blé Goudé’s in 2014.

A majority of the trial chamber found that the prosecution failed to prove the defendants’ connection to the violence; the prosecution has appealed.

Those who watch the ICC closely anticipated the acquittal. The judges signalled throughout 2018 that they were seriously entertaining defence motions to acquit based on prosecutorial failures to make a case.

The verdict is the latest in a series of missteps attributed to the prosecution. The DRC’s Jean-Pierre Bemba was controversially acquitted on appeal of sexual violence in Central African Republic in June 2018. In 2014, charges against Kenyan leader Uhuru Kenyatta relating to post-election violence were withdrawn. Two years later, charges were dropped against two other Kenyan politicians, William Samoei Ruto and Joshua Arap Sang; these also related to violence after the 2007 elections.

These examples showcase foundational disagreement regarding the substance and application of international criminal law doctrine. They also underline how vulnerable the court is to power politics, as past cases have collapsed due to corrupted evidence and witness tampering. This acquittal thus augments an increasingly urgent conversation about how international criminal law is failing in its promise to hold leaders accountable for committing gross human rights violations.

Dysfunction and Confusion

The judgment in the Gbagbo and Blé Goudé case was highly unusual in several ways.

First, it was made in an unprecedented format: an oral pronouncement that was not accompanied by a written judgment. The ICC has never taken this approach before. The dissenting judge in this case, Judge Herrera Carbuccia, has argued that this format violates ICC procedural rules.

Written judgments are centrepieces of international criminal law, and legitimise the lengthy trials, long delays and high cost of international justice. Written judgments show the work and professionalism of international courts, and distinguish them from other bodies that make pronouncements without explaining or supporting their rationales.

The ICC will eventually produce a written judgment, but this will come too late for the prosecution, which has asked the court not to release the defendants as it appeals the judgment. The oral judgment only restated the charges made in the indictment, giving no details at all as to why a majority of the trial chamber believed the prosecution’s case was inadequate.

It is also only the second time in its history that the ICC has acceded to the defence’s request to acquit based on a “no case to answer” motion.

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This is a hard motion to win, because the question before the court is not “will this court find the defendants not guilty?” but rather “could no court reasonably find the defendants guilty?”

This is the motion Gbagbo’s and Blé Goudé’s attorneys filed when the prosecution’s case ended in January 2018. Over the course of 2018, the defence and prosecution fought out the question of whether the prosecution had made a case that incriminated the two defendants.

The 15 January judgment answered this question in the negative. This means the prosecution failed to make a case that would permit any court to convict the two defendants, in the opinion of two out of three judges in the trial chamber.

Without the written judgment, it is difficult to assess how to attribute the collapse of the prosecution’s case, which might be due to poor argument, poor evidence, changed circumstances, or something else. It is also difficult to assess why the majority of the trial chamber, after labouring on this question for more than a year, felt so rushed that it could not put its rationale in writing. The oral judgment thus suggests failures on the part of the prosecution and the judges.

And, the controversy is not over. The ICC’s appeals chamber has promised to hold a hearing by 1 February 2019. Gbagbo and Blé Goudé will remain in detention at least until then – a direct contravention of the trial chamber’s orders that they should be immediately released following the acquittal. This suggests a power play between the trial and appellate chambers that further detracts from the court’s institutional legitimacy.

Implications

The high-level cases that have collapsed at the ICC in recent years highlight the difficulties faced by institutions that rely on state cooperation to bring prosecutions. Powerful figures with powerful coalitions are successfully resisting challenges to their sovereignty, even when such challenges are based on their violations of universal rights.

Another way to state the problem is to note, as analyst Mark Kersten does, that the ICC has not opened a single case against a state leader since 2011, and that the court risks becoming an institution that “only prosecutes rebels”.

This latest acquittal and ensuing appeal requires observers to consider not simply what the ICC decided, but how it did so. The messy, foundational disagreements pronounced within the institution itself – between prosecution and bench, within the trial chamber, between trial and appellate chambers – support the charge that the institution is dysfunctional.

The ICC may be able to survive being labelled ineffectual, as evidenced by its ongoing failure to detain Sudan’s Omar Al-Bashir; and imbalanced – it is often criticised for only bringing charges against Africans. But charges of being unprofessional or haphazardness are likely to hurt the court across all its constituencies.

Kerstin Carlson, Associate Professor International Law, University of Southern Denmark

This article is republished from The Conversation under a Creative Commons license. Read the original article.



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Public Procurement Administrative Review upholds tender awarded by KEMSA: The Standard

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Kenya Medical Supplies Agency (Kemsa) CEO Jonah Manjari before Senate. [Boniface Okendo, Standard]
The Public Procurement Administrative Review Board (PPARB) has dismissed an appeal by Tunasco Insaat Anonim Sirketi (Tunasco) seeking to nullify a tender awarded by Kenya Medical Supply Authority (KEMSA) to China Railway No.10 Engineering Group.

“The Public Procurement Administrative Review Board (PPARB) has dismissed an appeal filed by Tunasco against an award by KEMSA for the tender for Supply Installation and Commissioning of Racking System and Associated works on grounds that the appeal lacked merit,” read a statement by KEMSA.
Tunasco cited breaching of sections of the procurement act in evaluating the company’s application and even argued that an additional item, Addendum No. 1 dated April 30, 2020, 15 days after advertisement of the tender, omitted the requirement for manuals and materials certificates from the tender document and the criteria for evaluation.
However, KEMSA confirmed that the Addendum No.1 only removed manuals and material certificates from the mandatory preliminary examination requirements.
SEE ALSO: Anti-graft agency probes illegal dealings at Kemsa
“All bidders were required to include comprehensive manuals and materials certificates in response to the specifications and bills of quantities contained in the tender document,” read the statement by KEMSA.
“The Applicant breached Clause 3.1 and Clause 2.17 of Section Il. Instructions to tenderers of the tender document since the manuals and materials certificates provided by the applicant were not in the English language and had no reference to the prescribed standards,” contended KEMSA faulting the applicant for not meeting all set requirements.
PPARB has emphasized the need for bidders must to comply with all technical specifications provided in the tender documents, failure to which bidders would end up facing consequences.
“It is the Board’s considered view that the product proposed by a bidder must meet the technical specifications of the tender document and this was a critical requirement to the effect that a bidder’s failure to meet the same would render such a bid non-responsive and the same would not be evaluated further,” read the ruling in part the ruling by PPARB.
KEMSA, Chief Executive Officer Dr Jonah Manjari has expressed his commitment in following the law and procurement rules while upholding the highest ethical standards of accountability and transparency in health services.
SEE ALSO: Boost for HIV patients in Covid fight
The ruling by PPARB is a sigh of relief and sanitizer for KEMSA which has faced sharp criticism for weeks over claims of unprofessionalism and bias in offering tenders.
“In fulfilling our mandate, it is important to uphold fair play and this means that we encourage healthy competition in our processes,” said Mr. Manjari.

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47 counties have over Ksh 110B in assets, Ksh 57B in liabilities

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The 47 counties have assets worth over Ksh 110 Billion according to the latest report by the Intergovernmental Relations Technical Committee (IGRTC).

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It has emerged that the committee had used Ksh 400 million to identify the assets against a budget of Ksh 4 Billion that had been projected by the defunct Transition Authority (TA).

This came as the committee tenure ended with a new team taking over the running of the committee on a six-year tenure.

According to the CS for Devolution Eugene Wamalwa, the outgoing team had done a commendable job in identifying the assets which were at risk of being grabbed.
Wamalwa noted that the committee had managed to identify 62,342 parcels of land, over 70,000 buildings and 2,600 cars owned by defunct councils.

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“According to the new report, Counties have assets worth Ksh 110B and liabilities running to Ksh 57B and we are grateful to this committee for a job well done,” he said.

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He questioned the budget proposal by the defunct Transition Authority which stood at Ksh 4B noting that the outgoing committee had used Ksh 400m.

“The rehabilitation of the old Nairobi-Nanyuki railway line used Sh1B from the proposed Ksh 21B and it seems that there is a big problem in some departments,” he said.

Speaking in Panorama Hotel in Naivasha during the handing over ceremony, he expressed his concern over an increase in cases of inter-governmental disputes.

“We are grateful that the IGRTC has helped solve some disputes between government institutions as the government has paid millions to lawyers during court cases,” he noted.

On the current revenue allocation impasse, Wamalwa was optimistic that Senate would help resolve the issue soonest possible.

“We hope that there will be sobriety in the manner that the senate debates and resolves this issue which is very critical in the running of counties,” he said.
On her part, the outgoing vice-chairperson Allyce Kureiya said that during their tenure they had managed to resolve eleven out of the 23 disputes between counties.

“The biggest challenge we faced was interference from other bodies and we hope the new team will get full support from the State,” she said.

On his part, the new acting chairman John Burugu was optimistic that they would deliver after their term tenure was confirmed to six years.

“We are ready to tackle the pending disputes between counties and we shall seek the support of the State in reaching our objectives,” he said.

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Kenya: Suspected Ethiopian Cattle Raiders Kills Herdsboy in Turkana

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Suspected Ethiopian raiders on Sunday evening killed a herdsboy in Lokamarinyang village in Turkana North Constituency.

Turkana County Police Commander Samuel Ndanyi said that the raiders were targeting to steal livestock during the 5pm attack.

“The boy died while receiving treatment at Lokamarinyang Dispensary,” he said.

Mr Ndanyi said that the raiders are taking advantage of the vast, remote and poor terrain to launch attacks on Turkana herders.

“Herders grazing their livestock near the border are vulnerable to attacks because despite the several security patrols, vastness and poor road network is still the main challenge,” the police boss added.

SECURITY MEETING

He said that they have planned for a meeting to review the security operations along the expansive border with Ethiopia and South Sudan.

Turkana North MP Christopher Nakuleu condemned the attack, noting that the security situation along the border has deteriorated.

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Mr Nakuleu said that the raiders are using the well-executed attacks to instil fear among villagers so that they can move away from water points and grazing fields.

“How can raiders cross eight kilometres into the country, kill a boy and go back. The State should urgently boost security at the border to prevent incessant external attacks,” the legislator said.

He said that the recent disarmament that targeted national police reservists worsened the security situation.

But Mr Ndanyi assured residents that they will recruit new police reservists who will be working with police units because they understand the terrain.

Last month, the raiders killed a woman who was searching for wild cassava in Kibish near River Natodomeri.

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