Prosecuting Kenyatta: damned if you do, damned if you don't

On 5 September 2014, after years of digging in their heels, the International Criminal Court (ICC) prosecution further asserted that without cooperation from the Kenyan government, the trial against President Uhuru Kenyatta cannot proceed.

ICC Chief Prosecutor Fatou Bensouda filed an application requesting an adjournment of proceedings. If ICC judges agree with the prosecutor, the trial, which was set to commence on 7 October 2014, could be indefinitely postponed. This would not be the first time that the trial has failed to take off.

There have been numerous delays for various reasons. Chief among them is the lack of cooperation by the Kenyan government, which refuses to disclose certain documents that the prosecution says are central to successful prosecution. Kenyatta, elected into office in March 2013, is accused of complicity in several counts of crimes against humanity. These include murder, deportation or forcible transfer, rape, persecution and other inhumane acts following the 2007/8 post-election violence in Kenya. The prosecution maintains that a case can be made against Kenyatta, but that this requires additional evidence. In this regard, the prosecution accuses the Kenyan government of deliberately sabotaging its case.

This would not be the first time that this trial has failed to take off

Kenya, which is a state party to the Rome Statute of the ICC, is obliged to cooperate with the court in the course of its investigations and prosecutions. By not cooperating with the ICC, Kenya is seen as flouting these obligations and ignoring orders by the Trial Chamber.

Last Friday’s application by the prosecution, almost a month to the date before the trial is set to commence, raises a number of concerns about the prosecutorial strategy in this case. In 2013, a year after charges were confirmed against Kenyatta and his then co-accused, Francis Kirimi Muthaura, the prosecutor withdrew the charges against Muthaura. In withdrawing these charges, the prosecutor stated that crucial witnesses in the case had either been ‘killed or … are unwilling to testify or provide evidence to the Prosecution.’ With such a huge blow to the prosecution case, the prosecutor decided that there was not sufficient evidence to secure Muthaura’s conviction.

Since the Kenya cases began at the ICC, there have been numerous reports from the prosecution and others, including witnesses themselves, of intimidation. Witness intimidation and interference with testimony are considered serious offences against the administration of justice at the ICC. Another accused in the Kenyan cases – Walter Osapiri Barasa, a former journalist – was charged with three counts of offences against the administration of justice for corruptly influencing, or attempting to corruptly influence, three ICC witnesses. His trial is yet to commence, but his indictment sends a clear message that corruption or interference of witnesses will not be tolerated.

Withdrawing the charges would quash any prospects of justice for the 20 000 victims

Witness intimidation aside, in Muthaura’s case, the prosecution chose to withdraw the charges because although the evidence met the ‘substantial grounds standard’ to confirm the charges, it was insufficient to meet the ‘beyond a reasonable doubt standard’ required for a conviction. In Kenyatta’s case, however, the prosecutor appears to be on a relentless yet unfruitful pursuit of documents from the Kenyan government.

If indeed there has been little or no cooperation by the government of Kenya in disclosing evidence, despite an order by the Trial Chamber, the prosecution should request further intervention from the Chamber. The Chamber has powers to compel Kenya to comply with its obligation to cooperate fully with the Court.

Where there are fundamental challenges regarding a state’s compliance in cooperating in the investigation and prosecution of a case, the Rome Statute allows for a consultative process to take place between the Court and the state. Should a state fail to comply, the matter may be referred to the Assembly of States Parties (ASP) to the Rome Statute.

This path, however, involves the undesirable situation where political considerations are invoked to deal with a legal problem. Nevertheless, the prosecutor has not yet exhausted all avenues available through the Chambers to seek Kenya’s full cooperation. It is unlikely that this is the last we will hear from the Office of the Prosecutor on the matter.

With the difficulties that the prosecution continues to face, one would assume that the prosecutor would, as in the case against Muthaura, withdraw charges against Kenyatta, a position that is supported by the Kenyatta defence in its reply to the prosecutions application. However, the prosecution has chosen instead to postpone proceedings and continue the fight. The question is how long the proceedings can be paused. It is unlikely that the Kenyan authorities will cooperate with the ICC during Kenyatta’s tenure as president. If he were re-elected for a second (and final) term in 2018, this could mean that cooperation might only occur after 2023.

This raises an additional question on whether the prosecutor can or should seek indefinite postponement. The legality of such a request is open for debate, as an indefinite postponement would not be in keeping with Kenyatta’s right to an expeditious trial. Further, it is generally accepted that an undue delay of a trial against an accused can result in an acquittal. The prosecutor would certainly not take this risk, especially as victims’ groups continue to call for justice, contending that justice delayed inevitably means justice denied.

Arguably, this is also why the prosecutor does not intend withdrawing the charges. Indeed, withdrawing the charges would effectively quash any prospects of justice for the 20 000 victims in the case.

There are few, if any, cases in Kenyan courts relating to the 2007/8 post-election violence crimes. A report by a taskforce set up by the Director of Public Prosecutions of Kenya indicates that of the approximately 4 000 files related to post-election violence, very few meet or could meet the evidentiary standards to sustain a conviction by local courts.

In seeking postponement over a withdrawal, the underlying message from the prosecutor to the victims in the Kenyatta case is that their pain should not and will not be forgotten. The ball is now in the judges’ court.

Ottilia Anna Maunganidze, Researcher, Office of the Managing Director and Allan Ngari, Researcher, Transnational Threats and International Crime Division, ISS Pretoria