The Kenya cases were never going to be easy for the International Criminal Court (ICC) and the going only got tougher following the election of Uhuru Kenyatta and William Ruto, both of whom have been indicted by the ICC for their alleged roles in the 2008/09 post-election violence in Kenya.
The Prosecution has faced numerous obstacles in seeking to properly investigate and prosecute crimes pertaining to the post-election violence. Evidence has been withheld, witnesses have been intimidated, and Kenyatta and Ruto were elected to the positions of President and Vice President, respectively. Throughout the process, it seemed fair and feasible to assume that the biggest challenges to the prosecution of Kenyatta and Ruto would come from political developments within Kenya that were outside of the control of the ICC, and not from within the Court itself.
It thus came as a surprise (at least to those of us outside the inner-workings of the Court) when a presiding Judge in the Kenya case ripped into the Prosecution last week. Judges in the Pre-Trial Chambers rebuked the Prosecution for withholding evidence from the Defence. However, as Thomas Escritt puts it, Justice Christine van den Wyngaert “went further in her criticism of the prosecutors.” Did she ever.
It is worth reading van den Wyngaert’s entire opinion but here are some of the most stinging comments:
…there are serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation… the Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation…
…there can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in theProsecution’s case. This negligent attitude is particularly apparent in relation to Witness 4′s evidence because, as the Prosecution concedes,’the Office as a whole was on notice, prior to the confirmation hearing,of the inconsistencies in the account Witness 4 gave during his [second]screening’. Based on the foregoing considerations, I find that the Prosecution failed to properly investigate the case against the accused prior to confirmation in accordance with its statutory obligations…
In sum, whilst the application of the principles set out in the decision to the Prosecution’s conduct in this case in my view results in a finding of a violation by the Prosecution of several of its obligations and the infringement by the Prosecution upon various rights of the accused…
In addition to her stinging rebuke, van den Wyngaert removed herself from the case altogether. She has explained that her decision is a result of her caseload although some, like Kevin Jon Heller, are skeptical of her justification.
So how should we understand these developments?
With every development in the Kenya cases, and perhaps for all cases at the ICC, there are (at least) two types of implications for the Court: legal implications for the case and perception implications for the Court.
It is clear that van den Wyngaert’s opinion and her resignation as a judge in the Kenyatta case will have implications for the trial as it proceeds. What isn’t clear is precisely what those implications will be.
Ironically, van den Wyngaert resignation may ultimately benefit prosecution. As Heller astutely observes, “Judge van den Wyngaert’s withdrawal may well replace a judge who is skeptical of the prosecution’s case with one more inclined to accept it.” As a result, Heller claims that Kenyatta’s defence would be wise to appeal van den Wyngaert’s request to be removed from the case. If the defence takes Heller’s advice, it will be interesting to see if the Prosecution responds by claiming that van den Wyngaert’s commentary and her request to be removed from the case would ultimately bias her judgement in trial.
The Chambers’ condemnation of the Prosecution’s withholding of evidence to the defence is particularly troubling. Similar allegations plagued the Prosecution during the trial of Thomas Dyilo Lubanga. In fact, the Lubanga trial was almost thrown out of Court on two different occasions because the Prosecution was seen as having violated his right to a fair trial. At the time, many stated – and hoped – that this simply reflected growing pains for a young office and wasn’t representative of any pattern or policy. Another ruling stating that the Prosecution withheld exculpatory evidence from the Defence is troubling indeed, even if the ruling did not find that it was done intentionally.
The silver lining for the Prosecution is that, despite their rebuke, the trial will move ahead and not be returned to the confirmation stage, something that Kenyatta’s defence team had sought. This will certainly come as a huge relief to the Prosecution, especially after having to withdraw charges against Francis Muthaura. A ruling to restart the trial would have been a massive setback for the Office of the Prosecutor.
The Perception Game
In comparison to the Kenyatta, Ruto, and their supporters, the ICC has virtually no resources to counter messaging against the Court’s work – and in support of Kenyatta and Ruto – in Kenya. And it certainly doesn’t help that Kenyatta and Ruto now have control of state means to communicate with Kenyans.
As a result, the Court is losing the perception game in Kenya – if it hasn’t lost it already. It is worth stressing that this has less to do with the Court’s decision-making than with its lack of resources as well as the insufficient political support behind it in key cases.
But it certainly doesn’t help when the Prosecution is ripped into by ICC judges. It only adds more fuel for those who seek to lambast and undermine the standing of the Court at any cost. It was thus unsurprising that some local media attributed van den Wyngaert’s decision to remove herself from the trial not to her stated reason (ie. her workload) but to her criticism of the Prosecution. This spin fits not into reality but into the perception game being played by Ruto and Kenyatta’s network of supporters.
Good Law Can Better Perceptions
There isn’t much the Prosecution can do about the perception game. It simply doesn’t have the clout or resources to counter the wave of support or the communications machine in favour of Kenyatta and Ruto. The Court can’t control who wins elections and, without a dramatic surge in political support and funding for its work, it can’t control whether evidence is withheld or witnesses are intimidated.
However, one thing the Prosecution can do is avoid repeating past mistakes which only invite new forms of criticism and media spin. Every mistake is an opportunity to learn. And while a coherent, water-tight and gaffe-free prosecution of Kenyatta and Ruto won’t win the perception game for the ICC, it certainly won’t hurt.