Shoddy probe to blame for collapse of ICC cases

Weaknesses in the International Criminal Court have become more apparent following the withdrawal of President Uhuru Kenyatta’s case, analysts now say.

According to scholars Tom Ojienda and Macharia Munene, the collapse of the case was expected because former ICC Prosecutor Luis Moreno Ocampo failed to carry out proper investigations into the 2007 post-election violence.

Speaking to The Standard on Sunday, Prof Ojienda said that instead of getting any closer to the truth about who was behind the violence that claimed 1,133 lives, the court found itself on trial.

ICC threshold

He said the cases were unique because it was the first time the Office of The Prosecutor (OTP) initiated an investigation, and the accused took the “bull by its horns” instead of running away from prosecution. “Until now, all the other cases being investigated have been either self-referrals or, in the case of Libya and Sudan, referred to the court through United Nations Security Council resolutions,” noted the lawyer.

Noting that the Rome Statute is grounded on complementarity, there were questions as to whether the Kenyan situation meets the ICC threshold.

“Traditionally, domestic judiciaries deal with such cases. Importantly, the ICC is a court of last resort; prosecutions proceed only once the OTP is convinced that the state in question has neither the capacity nor willingness to initiate legal proceedings,” Ojienda said.

The lawyer further observes that the withdrawal of key witnesses and recanting of statements complicated the Kenyan cases at The Hague.

“The withdrawal has highlighted many of the weaknesses of the international legal avenue for pursuing people responsible for genocide, war crimes and other crimes against humanity. The decision to withdraw the case against the President will have far-reaching consequences for attempts to achieve international justice in the future,” said Ojienda.

The senior counsel, who also represents the Law Society of Kenya (LSK) at the Judicial Service Commission (JSC), said the cases started crumbling the moment charges against President Kenyatta’s co-accused were dropped.

“Such serious cases cannot be founded on mere suspicions and allegations. They ought to have sufficient evidence and credible witnesses whose testimonies can be relied upon. It was clear from the onset that the cases would collapse,” Ojienda said.

Manipulation

Mr Munene, a professor of History and International relations at the United States International University (USIU), said the ICC succumbed to international manipulation by powerful countries that engineered the trial of Kenyatta, his deputy William Ruto and radio journalist Joshua Sang.

“Ocampo did not carry out any investigations into the 2007 post-election violence. He came to Kenya to fulfill a political mission. His objective was clear from the word go: Make Kenya an international example,” said Munene.

He also concurs with Ojienda that the cases started to collapse the moment charges against Uhuru’s co-accused were dropped.

“When the prosecutor dropped cases against co-accused Francis Muthaura after a key witness admitted to lying – the first time in the more than 10-year-old court’s history that they had dropped a case so close to trial – it was evident that the cases would collapse,” said the university don.

By preferring charges against equal number of leaders from the two political sides, PNU and ODM, Ocampo’s intentions were clear; to punish the politicians rather than institute a thorough judicial process that would have helped victims of the violence get justice, said Munene.

“Since then, a number of prosecution witnesses dropped out of the case. Others recanted their testimonies in full and claimed that they were induced by the OTP to testify against the accused,” noted Munene.

Witness interference

While dropping the cases, the ICC’s Chief Prosecutor, Fatou Bensouda, complained of an “unprecedented level of witness interference,” in this case, marked by “persistent and systematic” attempts to bribe witnesses, as well as extrajudicial killings, forced disappearances and threats against them.

“All this was bad news for the ICC and its attempt to prosecute a sitting head of state (and his deputy),” observed Munene.

The two scholars said the case against the Deputy President and radio journalist Sang should also be withdrawn, as it was clear that justice would not be served at the ICC.

“Going forward, Kenyans should focus on the future. It is time we build on what we lost in the post-election violence. We should support the government and ensure that what happened in 2007 does happen again,” said Ojienda.