It was only when I settled in the United Kingdom that I realised how very different it was to the Netherlands. The genuine fabric of British society had eluded me during the occasional holiday. Both countries qualify as European yet the UK seemed to mirror the United States, its raw and undiluted capitalism, a privatised public transport system condemned to a rundown infrastructure, all the result of a neoliberal philosophy that considers government investment in the public domain a taboo. A harsh binary political environment, bolstered by a biased right-wing media, this all seemed to echo America, far removed from the cushioned social democracy I had left behind, where the political machine is lubricated with coalitions and compromise.

However, overtime I became aware of one distinguishing disparity; the UK was so much more diverse than the Netherlands.  An introduction to the illustrious National Health Service (NHS) confirmed this beyond doubt.  My medical predicament introduced me to an Iranian surgeon, a Chinese lung specialist, a Pakistani cardiologist and a Kenyan head matron who commanded an army of nurses made up of Ugandans, Malawians, Zimbabweans, Bangladeshi, Indians, Filipinos and countless other nationalities. My bank manager was Nigerian, television paraded an endless stream of people of colour clearly all experts in their fields deliberating everything from cancer research to space travel.  This was a far cry from the Netherlands where authoritative voices were predominantly white and where people of colour were only invited on television to discuss music, sport, or problems within ethnic communities.

The United Kingdom might be able to lay claim to diversity; it is nevertheless a country deeply scarred by racism. I could not escape daily headlines highlighting racist incidents, from the despicable aftermath of the Stephen Lawrence murder, the Windrush scandal incited by Theresa May’s demand for a “hostile environment”, the blatant disregard for the Grenfell tower victims, of which the majority of fatalities were from minority backgrounds. And finally Brexit, fuelled by vitriolic xenophobia, convinced me that the United Kingdom is a country steeped in racism.

So how can a country burdened by racism boast diversity? Social democracies like the Netherlands might seem more compassionate, but they are not necessarily inclusive. The prevailing sentiment is that the indigenous population finances the utopian welfare state, thus the demand that the non-native contribute before receiving any benefits, making the service inaccessible to outsiders. The chaotic and deregulated Anglo-Saxon economic system generates a different dynamic, providing a degree of economic mobility to the “outsider” one that gives precedence to the individual at the expense of the collective. Far removed from altruism but more in step with an economic meritocracy.

The United Kingdom cherishes a close cultural proximity to the United States, a shared Anglo-Saxon lineage, once described by George Bernard Shaw as two countries divided by a common language. Labelled by politicians as the “Special Relationship” this alliance provides the UK with a sense of global relevance designed to compensate for the loss of their once expansive empire.

The relationship is by no means reciprocated, for the USA the UK is of no immediate relevance and is regarded with a sense of nostalgia. Some Americans see the fate of the UK as a prelude to their own future, the manifest destiny of a former superpower long past its sell-by-date, desperately struggling with its place in the world. In the wake of Brexit you might think that only the Tories nurture this love affair, but it is ingrained in the British political psyche. Tony Blair’s enthusiasm for the Iraq War led by George W Bush reveals the deceitful lengths to which the UK would go to sustain the “special relationship”,  recalibrating its moral compass for the sole purpose of a prominent place on the global stage.

Brexit has intensified the “special relationship”. Johnson proclaims that a free trade deal with the United States would not only be the reward of leaving the EU but would also be more fitting, arguing that both countries with their intertwined cultures are natural allies.  In Brexit Britain, Europeans are deemed foreign. For Johnson the natural affiliation is with “our transatlantic cousins.”

The protests following the murder of George Floyd on the 25th of May 2020 in Minneapolis traversed the Atlantic effortlessly, finding fertile ground in London, Birmingham, Liverpool, Manchester and Newcastle upon Tyne. The Black Lives Matter protests forced the United Kingdom to reflect on its own race relations, confronting the UK with its own colonial past, founded on racist principles. The Statue of slave owner Edward Colston was dethroned and thrown into Bristol harbour. Boris Johnson’s idol Winston Churchill, who looms high over Parliament Square, received heightened police protection during the protests.

Johnson immediately distanced himself from the United States; promptly occupying the moral high ground. His government branded BLM a foreign political movement and labeled institutional racism a uniquely American phenomenon, oblivious to the fact that America’s racism is rooted in the European colonial experience.

When London’s police force suspended an officer after video footage emerged of him kneeling on the neck of a detained black man who cried out, “Get off my neck!”, Boris Johnson could feel the moral high ground slip beneath his feet and commissioned an official inquiry into institutional racism within the United Kingdom. The result was the now infamous Report on Race and Ethnic Disparities, published on the 25th of March 2021.

The immediate response to the report was overwhelming, twelve contributors withdrew their involvement, claiming that their input had been misconstrued to bolster a government narrative claiming that there is no evidence at all of institutional racism in the UK. In addition, the bold conclusion to the report actually implied that the UK was a gleaming illustration of inclusiveness, a shining example for all white majority countries.

The report’s cover page is a testimony to its failings, made up of a collage of fourteen images of happy white people interacting with smiling people of colour. This iconography has deep roots in European colonial history and was later adopted by the aid industry; it is intended to depict racial harmony, however research has established that viewers experience these images as white authority versus black gratitude, which was the intention of both colonialists and the aid industry.

The government’s Report on Race and Ethnic Disparities is littered with crude attack lines articulated by a patronising tone of intergenerational arrogance, a casual denunciation of the politics and passions of the young. With infinite condescension the authors dismiss the belief in institutional racism in the UK as a figment of the imagination of the youth; ‘the idealism of the “well-intentioned”’.  The authors and the government whose agenda they so faithfully serve are determined to favour comforting national myths over hard historical truths.

It is obvious that the report was devised as a political tool rather than an exhaustive investigation into the impact of racism in the UK. Within a week two hundred and fifty experts on race, education, health and economics had voiced their objections to the report, joining the ever-growing criticism of the commission for brazenly misrepresenting evidence of racism. The ultimate humiliation for the UK government was the denunciation of the report by the United Nations.

The most shocking assumption can be found in the foreword written by Tony Sewell, the commission chairman. Sewell wrote: “There is a new story about the Caribbean experience which speaks to the slave period not only being about profit and suffering but how culturally African people transformed themselves into a remodelled African / Britain”.  Astonishingly the authors adopt an argument that was used by the slave owners themselves in defence of slavery 200 years ago: the belief being that by becoming culturally British, black people were now beneficiaries of the system, conveniently circumventing the reality that the subjugation of millions of Africans was a crime against humanity. Tony Sewell’s appointment as commissioner was a calculated move by the UK government, his renouncement of institutional racism was well established and the fact that he was of Afro Caribbean descent lent him credence.

The fiercest criticism came from the theologian Robert Beckford, professor of black theology at The Queens Foundation. Beckford stated that the report was consistent with the radical historical amnesia and vicious revisionism of Caribbean and African history by the British far right – “the report had reduced slavery’s racial terror and Britain’s racial capitalism to a simple exchange of cultural ideas”.

The report concludes that Britain is no longer a place where “the system is deliberately rigged against ethnic minorities”, despite the continuing Windrush (HL) scandal providing one of the clearest cases in recent history where government decisions caused catastrophic, racially discriminatory outcomes. This perverse conclusion proves that the report is a political instrument and not a reflective exercise.  The report is not addressed to communities who experience racism; it was designed to send a message to those who believe that the fight against racism is the zero-sum battle for resources and recognition, which were once the sole domain of white people.

The Report on Race and Ethnic Disparities is the culmination of a long campaign to debase antiracism. It is part of a broad strategy to blame those who oppose racism for the very social divisions that they are identifying. This obscene point of view argues that those people who experience, study and challenge racism keep it alive and not those responsible for maintaining and reproducing it.

The report’s interpretation of racism is static, frozen in the past. The reader can only conclude that if racism today does not precisely mirror the experiences of the report’s middle-aged authors, it simply is not racism. The authors understanding of racism is narrowly based on economic achievement. So, because some members of ethic minorities experience success in terms of income or educational attainment, then racism’s persistence for some groups including migrants and asylum seekers (not once mentioned in the report) can be effectively ignored. The narrative of the report is that it is up to the individual to succeed, a genuine example of blaming the victim.

The government celebrated the outcome, which was embraced by its right-wing allies in the media, amongst them the toxic Rod Liddle writing in The Sun. It reads as follows:

“SO, it’s official. The most important report into racial inequality in the UK for decades has concluded that there is NO PROOF for structural or institutional racism in our country.

Instead, Britain stands as a beacon of integration and fairness. Who compiled the report and wrote up its findings? Boris Johnson? Nope, the brilliant black educationalist Tony Sewell. And how has the Left and the race relations industry responded. They’re spitting blood. Absolutely furious.

Sir Keir Starmer, leader of the Labour Party and as white as the driven snow, says he is “very disappointed” with the report. He’d have preferred it to have said that Britain is a hive of racist white supremacists, I suppose. All the charities, quangos and campaigning groups, which depend upon their living for suggesting that the UK is a horrible racist place to live have screamed blue murder. Of course they have. They depend for their existence on wallowing in a sense of victimhood. In deepening divisions between black and white. The funding they get depends upon it.

Rod Liddle writing in The Times.

Tony Sewell smokes out the real racists. A particular nasty form of racism not dealt with in the Commission on Race and Ethic Disparities is one that its chief author, the excellent Tony Sewell, is discovering right now. To be black in Britain you must subscribe to a long list of opinions, principally to do with victimhood, or you will not be considered black at all, never mind if those opinions do not fit the facts.

The report fails on all possible fronts, however as a political instrument it is a masterful Machiavellian deflection. As (black) academics wrangle amongst themselves the Tory government could once again confidently reclaim the moral high ground and continue its culture war.

–

Editors note: Full Report on Race and Ethnic Disparaties here.

This article was originally published in Zam Magazine

While displaced families in refugee camps were exposed to TB, pneumonia and a range of other respiratory diseases – which could be COVID but no one knew because there were no tests available –, the pandemic meant good times for quite a different group of people in northern Mozambique.  From dollar budgets made available by international development partners to the exploited and conflict-ridden province of Cabo Delgado, the province’s ruling party leaders helped themselves to stays in beach hotels, lavish catering, supermarket goods and ‘COVID awareness’ dance music. A list of provincial expenses, obtained by the ZAM Kleptocracy Project, shows that donor-funded COVID 19 money went straight to such ‘official events’ for the province’s elite, while practically none of it was used to buy tests or treatment for the sick.

A good share of it likely went into local leaders’ pockets, too, for instance when the Hotel Sarima in Cabo Delgado’s capital, Pemba, was issued a budget of US$ 172,000 for three ‘COVID workshops’ formally costed at five hundred dollars each, but pocketed ‘only’  US$ 20,000 from the provincial authorities. ‘The rest is still with the province’, in the words of the hotel manager, Anifa Gonzaque. What ‘with the province’ meant was a question that could only be answered by provincial health director Anastacia Lidimba, who had signed the Hotel Sarima contract, but, even after the question was put to her four times via different channels, including personal Whatsapp and the provincial press spokesperson, Anastacia Lidimba refused to answer it.

Diamonds and supercars

There were more such instances in Cabo Delgado. And in the rest of Mozambique. And in Mali, where a former minister in charge of COVID funds suddenly said the fund had disappeared and just as suddenly appeared to have loads of cash for a new election campaign, while refusing to comment on any link between the two. At the time of writing, US$ 800 million in total COVID expenditure in South Africa is under investigation for possibly corrupt use; an amount close to a quarter of US$ 4,3 billion granted to that country by the IMF in emergency COVID relief.

With regard to other public expenditure, separately from COVID funds, similar theft and wastage of taxpayers money and aid dollars plague Nigeria, Zambia, Zimbabwe, Uganda, and Liberia. The ZAM Kleptocracy Project, a soon to be published new series of investigations by investigative journalists in nine African countries, exposes how political elites line their own pockets by selling out their countries. To do this, the kleptocrat rulers use the state systems that were once established by colonial regimes in their countries, literally carrying on the same resource extracting and plunder practices of their colonialist predecessors. Investigations from Uganda and Nigeria show that top politicians and bureaucrats even steal from own citizens in schemes that siphon off money: from civil servants’ salaries to payments for public services such as marriage certificates.

Other self-enrichment by kleptocrat elites ranges from the pocketing of COVID and other development grants to foreign loans and from diamond proceeds and social welfare budgets to inflated visa and passport costs billed to citizens.

In Zambia, journalists Charles Mafa and John Mukela found that politicians, top bureaucrats and ruling party officials benefit from expensive foreign loans for agricultural projects, while the repayment and interest on the loans is carried by poor farmers. In Nigeria, investigative editor Theophilus Abbah uncovered how visa and passport contracts with international tech companies create wealth for those on top of the deals, while the country loses out. His colleague Taiwo Adebulu unearthed a network in the same Ministry of Interior that extorts citizens who need marriage papers. In Uganda, in an investigation done by John Masaba, teachers often don’t even receive payslips for their salaries, which means that, when these salaries are stolen by bureaucrats higher up, they have no paper trail to track their money. Liberian citizens, likewise, watch politicians flaunt their mansions and supercars on social media, while, as Bettie Johnson Mbayo notes, the local anti corruption commission states that they simply have no way to track the origins of these assets.

Engineered to plunder

The series, which will be published by ZAM over an eight-week period and kicks off with a ‘follow-the-money’ exercise that focuses on COVID aid funds in Mozambique, Mali and South Africa, underlines that not merely individuals, but entire systems, are corrupt. In the case of the COVID investigation, this can even include, as David Dembélé in Mali shows, an entire circus of banners, posters and workshops, organised by the kleptocrat state to make donors think that the country is taking the COVID 19 threat seriously.

All the while, the bulk of aid and tax moneys made available to the kleptocratic states simply fattens and empowers those in charge. In the three countries of focus for the COVID 19 emergency funds investigation, only a fraction was spent on actual medicines, treatment facilities and health workers’ needs while in Mozambique, several millions of the aid money went to arms purchases. In Mali, likewise, the bolstered regime heightened its surveillance of health workers to prevent critical voices exposing ‘the deaths in tents in the sand.’  Meanwhile, the former deputy boss of the Nigerian Immigration Service, Daniel Makolo, lost both his job and his house after writing a memo about the  siphoning off of state funds by a partnership of foreign companies and top bureaucrats.

The investigations raise questions about ‘anti corruption’ measures that have been taken in African countries in the past. It appears as if countless ‘good governance’ commissions and speeches, like in Liberia, stay mainly where they originate, that is, on paper. In Uganda, even ministers seem reluctant to take action to clean up their offices. ‘There are these corrupt people in my department,’ in the words of the Ugandan minister of Public Service. ‘But we try to train and reorientate them’.  In the same country, as in Nigeria, online fixes – a digital payroll, a digital public service appointment service-  have turned out to be just as cosmetic as long as the corrupt  stay in charge of the computers.

In Mali, no ministry even answers the phone while the Mozambican Finance Ministry spokesperson, Alfredo Mutombene, states in response to Estacio Valoi’s questions that he ‘will only be able to find misuse of funds after all the state’s auditing mechanisms will have been deployed.’ In all countries of focus such auditing reports are issued year after year, mostly without anything changing or any culprits held accountable.

Uncancellable contracts

The ZAM ‘anatomy of kleptocracy’ project begins to lift a veil of the mechanisms and processes in African state machineries that enable and reproduce continuous corruption. It portrays plunder systems so entrenched that nothing changes, even when individual ‘rotten apples’ are arrested. In Zambia, the judicial system has seen two ministers who amassed ill-gotten wealth for all to see, in court for corruption recently. Both were left off the hook; and one is still even a minister. In Nigeria, neither a parliamentary investigation nor a series of court cases could reverse a situation where taxpayers money was funnelled off to international companies in which top bureaucrats had a stake; this is still happening today. Though the fraudulent bureaucrats in question were criticised and their prosecution was called for by parliament, nothing happened; even the parasitical ‘uncancellable’ contracts, whereby money from citizens for passports lands in private pockets, still stay in place today.

STREAMER Citizens are targeted with anger and victimisation

All the above is paired with callous exploitation and deprivation of own citizens, as well as with equally systemic oppression of these citizens’ complaints and protests. In Uganda, according to a parliamentary commission report unearthed by John Masaba, corrupt bureaucrats are so powerful that they are able to doubly victimise teachers who complain about salary theft. In Nigeria, engaged couples who try to book their marriages by using the proper online appointment procedure, are met with anger and repercussions, with bureaucrats withholding their certificates until they do pay the bribes and go away.

While good civil servants who genuinely try to do their jobs are often silenced and victimised, like in the Nigerian case of Daniel Makolo, those lacking ethics have solid careers. This is shown most starkly in the same Nigerian case, where a private tech company in the passport fees fraud took the country to court to force it to pay even more taxpayers money into the scheme. During that court case, bureaucrats with a stake in the corruption testified against their own country, enabling the ‘damages’ claim, with no repercussions befalling them afterwards.

Poisonous partnerships

Dissecting and analysing the corrupt and exploitative state mechanisms encountered by the journalists, the investigations unearth several categories of what they call ‘poisonous partnerships’  between kleptocrat regimes and their global ‘associates’. First among these are the appropriation and sell-out of natural resources, – which is after all an activity for which these state systems were set up by colonisers in the first place-, now under the control of ruling parties or military. Secondly, there is the literal selling out of countries into indebtedness, with the bill to be paid by citizens: in Zambia, ruling politicians now take loan after loan to -inter alia- fund overpriced and top heavy agricultural projects, with the proviso that these loans must be paid back by poor farmers, while the project bosses who asked for the deals are seen building mansions for themselves.

The klepto states also invariably also invite criminal syndicates to enter through the large loopholes on all levels in the system, in a dance of collusion with the officials ‘inside.’ The journalists cite examples that range from Zimbabwe’s diamonds to the COVID support grants in South Africa, reported on by Nazlee Arbee.

The poisonous partners, – ranging from financial donors to tech companies and from outright criminals to diamond-, wood-  and other natural resources buyers,-  support the regimes in question, but don’t contribute to actual development of a state that can deliver services like health care to its citizens. Charity -real or perceived-, the enrichment of a political elite, plunder of resources, exploitation of citizens and continued underdevelopment are factors in all the investigations. The most poignant example of this is perhaps the Nigerian passports and visa scheme, where both the state budget and citizens pay double fees into a constitutionally illegal ‘public-private’ partnership, while in the end, the job of protecting the borders is not even done. In Nigeria, armed militias and bandits still leave and enter the territory as they please.

Aid and underdevelopment

Questions raised by the Kleptocracy Project range from the possible failure of previous anti corruption fixes to the reasons why measures like management controls – firing directors who don’t supervise the work of subordinates, for example- , or abdicating as a minister, seem to be out of the question, while financial scrutiny is limited to reporting after the fact. How do these states function and how, if at all, can they be transformed to a real public service? What is the actual role of international partners vis a vis the postcolonial regimes in Africa? Are money streams to those states, in either loans or charity, still to be pursued? Does aid help development or does it entrench the status quo, as Kenyan activist Nanjala Nyabola said recently when she tweeted that vaccine donations to ‘Africa’ presented an ‘active study in how aid causes underdevelopment’ and that donations make it difficult to ‘pressure our governments to prioritise health’?

Nyabola’s observation is supported by the project’s findings in Mozambique, where politicians were quite happy to party with aid money because, as a state spokesperson put it, ‘our partners take care of our health needs anyway’ and in South Africa, where president Ramaphosa protested against ‘vaccine hoarding’ by the west, while budgets that could have bought vaccines last year had disappeared. In coming months ZAM will be following up on these observations and questions. What do the Kenyans who recently protested against extra IMF loans to their ‘pocket filling’ leaders, have to say on the subject? How can solidarity with Ugandan activists, who are arrested with police vehicles funded with Dutch development aid money, take shape?

Investigative journalism

On the bright side, the increasing practice of investigative journalism in Africa already seems to be making a difference. Though authorities in many African countries habitually do not respond to calls for comment, the incessant questioning during this project has started causing what might be called a remote response. After Taiwo Adebulu’s requests for comment, a high-ranking official at the Ministry of Interior announced that it ‘would penalise any official of the federal marriage registries found culpable of corruption’ while in South Africa, the head of the social welfare institution SASSA publicly described the challenges in her department in a weekly newspaper after Nazlee Arbee had bombarded the same department with questions. In Uganda, the parliamentary committee on education announced an investigation into the disappearance of civil servants’ salaries and the imminent arrests of thieves in the education department.

While similar measures and investigations have been announced time and time again, with no tangible results, the jittery reactions to journalists’ queries may indicate an incipient awareness among the powerful in the respective countries that demands for change and accountability are not likely to go away any time soon.

–

Editors note: Click on the link to read all the stories from the Kleptocracy project.

What was it like when Karim Asad Ahmad Khan and Anton Steynberg met after Khan became the third prosecutor of the International Criminal Court (ICC) on Wednesday, June 16?

Was it a brief hello-how-are-you-good-to-see-you-again meeting because Steynberg is leading the prosecution of one of the cases Khan committed to recuse himself from in writing? Was it tense? Or were they cool as cucumbers?

Khan, a British lawyer of 28 years’ experience, and Steynberg have history. They were on opposing sides during the trial of Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang at the ICC.

Khan represented Ruto. Steynberg, was the lead prosecutor. A South African lawyer of 31 years’ experience, Steynberg “sparred” with Khan over 147 days of hearings in a trial that ran from September 2013 to April 2016.

Both Khan and Steynberg experienced the pressures that come with any high profile trial, including sustained media scrutiny and constant public commentary about what was happening in the courtroom. That in itself can make the adversarial relationship between a prosecutor and a defence lawyer more difficult.

Making that adversarial relationship even more fraught was Steynberg watching as the case he was arguing deteriorated before his eyes. An online campaign to “out” witnesses who were testifying under protection measures began as soon as the first prosecution witness testified.

As many as 16 witnesses recanted their statements during the course of the trial and many of them refused to testify in court after recanting. The prosecution asked the court to compel nine of them to testify. The court granted the subpoenas. After all that, Steynberg still had to ask to be allowed to treat some of the witnesses who were compelled to testify as hostile because they continued to disown their earlier statements to prosecution investigators under oath.

In the middle of all this, Meshack Yebei, who at one time the prosecution had considered calling as a witness, was found dead in Kenya. At the time, Khan said Yebei had later become a defence witness. He also alleged that at one point the prosecution threatened to abduct Yebei.

The judges stopped the trial after the prosecution closed its case. In a 2-1 majority decision issued on 5 April 2016, they said a key reason for terminating the case was that the evidence had so deteriorated that they would not be able to make a judgment on the innocence or guilt of Ruto and Sang.

The judges said this happened because witnesses had been intimidated and bribed, but they were careful to say that neither Ruto nor Sang were implicated in any scheme to intimidate or bribe witnesses. However, the judges did say that Ruto and Sang were the beneficiaries of such schemes. They released Ruto and Sang from the conditions they had set for them. They, however, did not acquit them.

Five years later, Steynberg is leading the prosecution case in which Kenyan lawyer Paul Gicheru is alleged to have been the manager of a bribery scheme involving six witnesses in the collapsed case against Ruto and Sang. The prosecution has also been explicit in the Document Containing the Charges (DCC) against Gicheru that Ruto was the alleged intended beneficiary of this scheme. The prosecution is also explicit about the association between Gicheru and Ruto. Both these allegations go further than what the prosecution had previously said on the matter.

The prosecution made these allegations in submissions before Pre-Trial Chamber A. Gicheru’s lawyer and the prosecution have made their submissions on the charges against Gicheru and the pre-trial judge is expected to issue a decision by 16 July on whether Gicheru should stand trial.

Khan is now Steynberg’s boss, so how did their first meeting go?

Khan’s conflict of interest

Ruto is not the only person Khan has represented before the ICC. He represented Francis Kirimi Muthaura, the former Head of Public Service in Kenya, in a separate Kenya case before the ICC. When the case against Muthaura was terminated, Khan then became Ruto’s lead lawyer.

Before the Kenya cases, Khan represented a former Darfuri rebel leader, Abdullah Banda. In July 2018, he ceased being Banda’s lawyer when he began work leading a United Nations investigation into atrocities committed by the Islamic State in Iraq. His official title was Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Da’esh/ISIL crimes (UNITAD). Banda’s case is ongoing. Khan has also represented Saif al-Islam Gaddafi, a son of former Libyan leader Muammar Gaddafi. He also ceased representing Gaddafi when he took up his UNITAD assignment. Saif al-Islam Gaddafi is in Libya and has an outstanding ICC arrest warrant.

Khan’s role as a defence lawyer in many cases before the ICC is one of the reasons why he committed in writing to his predecessor, Fatou Bensouda, that he would recuse himself from any case where a perception of conflict of interest may arise. The Rome Statute, the ICC’s founding law, also requires this of him as prosecutor.

But Khan’s written commitment to Bensouda will not cover all possible conflicts of interest. For example, it had been the practice of Luis Moreno Ocampo and Bensouda to sign all prosecution filings made to the court. This practice is based in part on the fact that as the ICC’s chief prosecutor they have been the lead prosecution lawyer in all cases before the ICC even if they assign day-to-day work to other prosecutors. How will Khan deal with this practice? Will Deputy Prosecutor James Stewart sign off on future filings where Khan may have a conflict of interest?

Khan’s written commitment to Bensouda will not cover all possible conflicts of interest.

The committee that interviewed Khan and 13 candidates for prosecutor flagged this issue of Khan’s conflict of interest in their appraisal of him.

“Given his previous engagements as defense counsel in a number of on-going cases before the ICC, the probability of the need for multiple recusals is considerable,” said the committee in its appraisal that was made public on 25November 2020.

The appraisal reads in full:

Mr. Khan is a charismatic and articulate communicator who is well aware of his achievements. He demonstrated a good command of international criminal law practice and of the global context in which the ICC operates, as well as a clear vision of necessary changes in the OTP (Office of the Prosecutor). Since his appointment to UNITAD in 2018 he has gained experience in managing a large team, although he did not demonstrate familiarity with ICC budgetary processes. He demonstrated a clear commitment to a harassment-free workplace, drawing on concrete experience. Given his previous engagements as defense counsel in a number of on-going cases before the ICC, the probability of the need for multiple recusals is considerable. The Committee took note of an apparently coordinated write-in campaign by civil society organizations on Mr. Khan’s behalf, promoting his candidacy despite the confidential nature of the process.

The Kenyan connection

Khan was not the committee’s first choice as nominee for prosecutor. He did not even make it on their shortlist of four nominees for the post. Khan would not have become the third prosecutor of the ICC without Kenya’s help. Whether Khan was Kenya’s candidate is a matter of speculation. What is clear is that if Kenya had not written to reject the nominees shortlisted for the post of prosecutor, Khan would not be prosecutor now.

The four shortlisted nominees were Morris Anyah, Fergal Gaynor, Susan Okalany and Richard Roy. Each of them has between 24 and 31 years’ experience as lawyers. Okalany’s and Roy’s experience is primarily as prosecutors in their respective countries. Okalany is Ugandan and Roy is Canadian. Anyah, who is Nigerian-American, was the lawyer for the victims during the pre-trial phase of the case against President Uhuru Muigai Kenyatta at the ICC. Anyah’s most prominent client has been former Liberian president, Charles Taylor, whom he represented before the Special Court for Sierra Leone. Gaynor, who is Irish, was the lawyer for victims during the abortive trial phase of the case against Kenyatta.

What is clear is that if Kenya had not written to reject the nominees shortlisted for the post of prosecutor, Khan would not be prosecutor now.

In a 13 July 2020 letter widely reported in the Kenyan media, Kenya’s ambassador to the Netherlands, Lawrence Lenayapa, questioned whether Anyah, Gaynor, Okalany and Roy were suitable to be the ICC prosecutor. He also said the shortlist was skewed in favour of Gaynor becoming the prosecutor.

Lenayapa argued in his letter that because the outgoing prosecutor, Bensouda, was an African it was unlikely that an African could be elected as prosecutor thus eliminating Anyah and Okalany from the running. He also argued that since the current deputy prosecutor is a Canadian, it was unlikely that Roy could be elected prosecutor.

The ambassador also raised the conflict of interest issue. “It would be imprudent for State Parties to settle for a candidate who would have to recuse himself from some of the most challenging cases pending before the Court,” Lenayapa was quoted as saying in his letter. “This would undoubtedly weaken the stature of the Office of the Prosecutor,” Lenayapa is further quoted as saying.

This letter was written about two weeks after the shortlist of nominees was made public on June 30 2020. In the letter Lenayapa said Kenya as an ICC member, or State Party, rejected the shortlist. This triggered more than five months of discussions among ICC members about how to move the process forward. One reason for the months-long discussions is that the Rome Statute requires ICC members to give priority to seeking consensus on a candidate for prosecutor before resorting to a vote on the matter.

In November 2020, it was agreed that the applicants who were on the longlist of 14 candidates interviewed by the selection committee be asked whether they still wanted to be considered for the post of prosecutor. A number said no. Those who said they still wanted to be considered for the position were then given their appraisals. Other applicants dropped out at this point. Eventually, only five of the people who were on the longlist agreed for their names to be put forward for the position. One of them was Khan.

It was after this that ICC members went to the next stage of formally electing a prosecutor. When they failed to reach consensus on a candidate, the ICC members put the matter to a vote. Khan won the election on February 12 this year after two rounds of voting.

Previous elections for prosecutor have involved horse-trading and the successful candidates have later been accused of underperforming. As Bensouda’s term came to an end, ICC members decided to do things differently. They decided not to begin the process of choosing a prosecutor months to their annual meeting as had been the case in the past because that is what is provided for in the Rome Statute. They instead chose to begin the search for a new prosecutor more than a year ahead of time. They also chose to delegate the work of sifting through the applications to a committee of diplomats aided by a panel of experts made up of lawyers and legal scholars.

It is this committee of diplomats that received a total of 114 applications for the position of prosecutor. Together with the panel of experts, the committee whittled down those applications to a longlist of 14 candidates. The committee then interviewed the 14 individuals and shortlisted Anyah, Gaynor, Okalany and Roy.

The committee only revealed the names of those shortlisted, making public their motivation letters, CVs and a summary of the committee’s assessment of them. The committee did not reveal who else was on the list of 14 candidates it had interviewed until it was asked to do so in November 2020.

The ICC in transition

Khan becoming the third ICC Prosecutor is Khan returning to his roots. He began his legal career as a prosecutor. Between 1992 and 2000 he worked for Britain’s Crown Prosecution Service and then in the prosecutor’s office at the International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR/ICTY).

He will be taking office at a time when not just the ICC’s Office of the Prosecutor but the entire institution is in transition. This is following a review of the ICC’s past 10 years by a panel of experts. Their recommendations are expected to be implemented in the coming years.

In addition, Khan will be presiding over what may be a changing case profile at the OTP. Currently under investigation at the OTP are crimes in Georgia, Myanmar/Bangladesh and Palestine. The Appeals Chamber authorised the OTP to investigate crimes in Afghanistan but the Afghan government has filed a request for a deferral, which is yet to be adjudicated. The OTP has also filed a request to be authorised to investigate crimes in the Philippines.

If these cases progress to pre-trial hearings and then trial, they would move the debate about the work of the ICC away from accusations that the court has an anti-Africa bias; the trials currently before the ICC all involve Africans.

He will be taking office at a time when not just the ICC’s Office of the Prosecutor but the entire institution is in transition.

Khan will now carry this baggage of perceptions that the ICC has an anti-Africa bias. But Khan’s time will not only be occupied dealing with perceptions about the ICC and the OTP, its most prominent arm. He will be responsible for implementing the recommendations relating to the OTP that the panel of experts made in their 10-year review of the ICC. Overall, the experts were stinging in their criticisms of the OTP.

The politest criticism of the OTP’s leadership in the past 10 years was that it was aloof. The experts said junior staff only saw the prosecutor during the OTP’s annual town hall meeting. The OTP’s work environment as described by the experts in their report can be summarised as toxic: micro-managing department heads, and bullying and harassment are common.

The experts said that they found that prosecutors and investigators have coordinated their work better in recent years than during the tenure of the first ICC prosecutor, Luis Moreno Ocampo. But the experts found that investigators were still based in The Hague and only carried out investigations on the ground during weeks-long visits. The experts also found that the OTP’s analysts were underutilised.

These are snippets of the experts’ report. But they offer an idea of the kind of changes Khan will be expected to make over the next nine years, which is the duration of his term as ICC Prosecutor.