Looks like Tony Gachoka has an axe to grind

By MAKAU MUTUA

They call him a “political activist”. But the term is a meaningless tautology. It’s like calling someone a “widow woman”. That’s because a “widow” is a “woman”, I would rather they called him a “political consultant” or even a “gun for hire”.

I am talking about former government functionary Tony Gachoka.

Mr Gachoka, the estranged aide to Prime Minister Raila Odinga, has suddenly “found his conscience”.

He now claims — nearly four years after the fact — to possess evidence of Mr Odinga’s culpability in the 2008 post-election violence.

Like Miguna Miguna — another estranged Odinga aide — Mr Gachoka wants to “unburden” himself at the International Criminal Court.

Why now? Deductive reasoning shows that Mr Gachoka isn’t acting alone. I’ll tell you why.

But let’s first dispose with some preliminary matters. It seems that the Dutch Government is sceptical about Mr Gachoka.

That’s why the Dutch Embassy in Nairobi has denied him a visa to The Hague.

Apparently, the ICC hasn’t accepted Mr Gachoka’s request for a meeting. You can read between the lines. The International Criminal Court most likely thinks Mr Gachoka is a “pest”.

That means he’s vexatious and an “instrument of confusion”. In other words, he’s being used as a pawn to delegitimise the court and its cases against the Ocampo Four.

Mr Gachoka should know that Dutch Embassy officials in Nairobi are keenly aware of plots to sabotage the court process. He should have been less transparent in his machinations.

I don’t know what sort of contact Mr Gachoka has made with the International Criminal Court, or the nature of the evidence he claims to possess. Nor do I know whether the court has responded to him. But I know this — the court is a savvy institution that knows a duck when it sees one.

The culpability of the Ocampo Four will not be established by implicating others. That’s not a sound legal strategy. The burden of proof lies with the prosecution to show — beyond a reasonable doubt — that the Ocampo Four are guilty as charged.

The defence is best advised to concentrate on tearing apart the prosecution’s case.

It will not help to introduce witnesses who can be easily impeached.

Why isn’t Mr Gachoka believable? First, he talks too much. He’s made too many public statements with which he can be impeached. He’s embittered against Mr Odinga. Like Mr Miguna, he was fired. Like Mr Miguna, he only wants to talk after the sack. That’s not a formula for credibility. He has an axe to grind.

Second, he really can’t explain why he’s held on to crucial evidence for a mind-boggling four years.

Possessing — and concealing — evidence could be a criminal offence. It also shows a lack of conscience. What does he tell the victims who cry for justice?

Can he ever look them in the eye and tell them why he’s sat on “crucial evidence” for four years?

For one, I don’t believe that Mr Gachoka has any evidence at all. He most likely has “stories” to tell, but no valuable evidence. He wants to set the court on a wild goose chase so that it can dissipate its resources and energy on “leads to nowhere”. It’s clear what the strategy is here – to divert attention from the Ocampo Four. This is how he and his “masters” plan to weaken the cases against the Ocampo Four. That’s why the ICC is unlikely to give him the time of day.

Even if the court relents and sees him, it would be out of courtesy, not seriousness. Nor would he see a high-ranking official. He’s an easy read.

Mr Gachoka is the latest cog in the PNU scheme to save the Ocampo Four. He’s no different from VP Kalonzo Musyoka’s “shuttle diplomacy” to sabotage the ICC at the African Union and the United Nations.

He’s a continuation of the challenges that the PNU wing of the coalition government lodged at the ICC. He’s picked up Mr Miguna’s boast that he can take Mr Odinga to the court.

But these are wild hallucinations. The court isn’t going to open new investigations into Kenya, or issue any more indictments. That’s done. Whether or not Mr Odinga and President Mwai Kibaki were complicit in the violence is now water under the bridge. The Ocampo Four should carry their own crosses.

I have some advice for the Ocampo Four and their supporters. The ICC, like all courts, has a psychology. Please study the court’s thinking, and its jurisprudence, otherwise you will continue to dig a deeper hole. The ICC is watching you carefully. Shenanigans by you or your supporters are very damaging. This can’t help with either the judges, or the ICC as an institution.

Don’t approach the ICC like a Kenyan court before CJ Willy Mutunga took over. 
You know the ICC recently convicted Congolese warlord Thomas Lubanga. You saw how the Special Court for Sierra Leone dealt with Liberian warlord Charles Taylor. We only want to know the truth – are you, or aren’t you – guilty as charged?

The court represents the one final forum for Kenyans to bury the trauma of the post-election violence so that we can move on. I don’t believe that justice for the victims will ever be done at home unless it’s first done at The Hague.

That’s why the trials of the Ocampo Four may be Kenya’s most important event since independence in 1964. I think the truth will come out at the trials of the Ocampo Four. We will know who planned and executed the mayhem. Let the truth set us free, Mr Gachoka.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.