By Kenneth Kwama

Contrary to popular belief, the coming of International Criminal Court (ICC) prosecutor Moreno Ocampo to the country should be good news to the goons, rapists, arsonists and those who facilitated them during the post-poll chaos.

Actually, Ocampo has come to pacify them and for that we should be very angry with him as a nation. As stated in this forum before, the ICC threshold for proving criminal liability for crimes against humanity is high.

You don’t have to be a lawyer to understand that if the tenet of "proving beyond reasonable doubt" in criminal cases is applied most of the suspects are likely to get away with their sins because it would be nearly impossible to incriminate them.

The only damage these criminals will suffer is slight dent on their political careers during the trial after which they will return from The Hague (if at all it gets there) heroes and heroines, having been acquitted for ‘lack of evidence.’

Two main principles apply in the criminal trial that suspects are likely to be subjected to at The Hague. First, like in our domestic courts, there is presumption of innocence until involvement of the suspect(s) in crime is proven beyond reasonable doubt.

Second, sufficient evidence must be adduced linking the accused to the crime. If this is lacking, the prosecution would fail and the aura of expectation that surrounded Ocampo’s visit to the country would dissipate into nothingness.

A proper look at the history of the ICC shows that it is one of the most toothless organs in the dispensation of justice.

The trial of former Yugoslavia’s dictator, Slobodan Milosevic, demonstrated just how vulnerable the ICC can be. During the trial, Milosevic requested to be allowed to call 1,000 witnesses, including former British Prime Minister Tony Blair, and former US President Bill Clinton.

Justice was also frustrated by donors funding the expenses because they were getting worried it could continue for years due to Milosevic’s extraneous demands.

If this approach is applied to crimes that occurred during the post-election violence, it would be hard to pin most of the people on the Justice Philip Waki list.

They could question the circumstances under which the evidence was acquired and demand that most of the witnesses whom they’ve already intimidated with threats testify in person.

They could also ask whether witnesses were in the right state of mind during the chaotic period to remember what happened, when and where.

The same problem almost crippled efforts to try those who bore the greatest responsibility for the 1994 genocide. In the end the government opted for traditional justice mechanism to punish the small fish and at the same time heal the nation.

This is the rough terrain awaiting us when and if those suspected of involvement in the post-poll chaos are put on trial at The Hague or by a local tribunal.