Yet another twist in the trial of Kenyan President Uhuru Kenyatta. Yet another win for victory for critics of the International Criminal Court (ICC). And yet another delay in the pursuit of justice and accountability for Kenya’s 2007/08 post-election violence.
The Kenya trials have already been ravaged by incessant controversy, repeated delays and a nasty war of words between Kenya, its allies and the Court. Now, ICC Chief Prosecutor Fatou Bensouda has declared that the prosecution does not have enough evidence to proceed with Kenyatta’s prosecution and, as a result, is seeking an adjournment in the trial. The Prosecution’s reasoning is based on the fact that some of its key witnesses were no longer reliable and thus “the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial.”
From the outset of her statement, the Prosecutor sought to make it clear that her decision was based on legal reasoning and not external political pressure:
My decision is based solely on the specific facts of this case devoid of extraneous considerations. As Prosecutor, I have consistently stated my actions and decisions are at all times strictly guided by the evidence in accordance with the Rome Statute legal framework. This recent decision is no different. It is my professional duty to react, and to take the necessary decisions when the state of the evidence changes, as it has in this case.
In truth, it won’t really matter whether the decision was legally based or not. On the back of the Assembly of States Parties conference where states agreed to accommodate Kenyatta’s request to avoid being present at trial, as well as significant pressure on the Court to ease-up on Kenyatta and his deputy, William Ruto, this decision will ultimately be perceived as political. And to a large degree it is a response to political developments – especially if the Prosecution is correct and its host of problems with evidence in the Kenya cases stems from Kenyatta allies intimidating and tampering with witnesses.
Bensouda also stated that this was not the end of her efforts to bring justice for post-election violence in Kenya:
“To the people of Kenya, my decision to apply for an adjournment today was not taken lightly and I have explained fully to the Judges the reasons for my exceptional decision. I have and will continue to do all that I can to realise justice for the victims of the 2007-2008 post-election violence.”
Curiously, Bensouda’s statement does not say that pursuing justice in Kenya requires prosecuting Kenyatta. Indeed, the most bizarre thing about the Prosecutor’s decision is that it appears to be a request for an indefinite delay to the trial (Update: this has now been clarified by the Prosecutor – see below). There is no indication as to when the Prosecution will be prepared to proceed with proceedings – or will even aim to be ready. Judges are likely to request the Prosecutor to be more specific about what type of time-frame she has in mind. After all it would likely be a breach of fair trial standards – not to mention justice – to have an open-ended threat that prosecution will continue at some undefined point in the future. The Prosecutor needs to be much more clear about what the plan is. If that’s not possible…
… of course, the other alternative is to withdraw charges altogether. This wouldn’t be unheard of. Just days after Kenyatta won the Presidential elections in Kenya, the Prosecutor withdrew charges for Francis Muthaura, a former ally of Kenyatta.
This is not a good day for the Court. Ironically, it would have been better if the UN Security Council had invoked Article 16 of the Rome Statute and deferred the prosecution of Kenyatta and Ruto for 12 months, a move that Kenya sought earlier this year and which I argued might not be such a bad thing for the Court. It would have bought the prosecution (at least) a year to prepare for Kenyatta’s trial. And blame would have been on the Security Council and not the Court.
It remains unclear who is to blame. There are, generally speaking, two theories: First, that the Kenyan government is to blame. They have undermined the trial and the Court from the beginning, intimidated witnesses, and sought to politicize proceedings. Second, that the Prosecution is to blame. Under former Prosecutor Luis Moreno-Ocampo, they over-stretched their mandate in Kenya, built a shaky case and now have been unrelentingly rigid in their pursuit of accountability despite the fact that Kenyatta and Ruto were democratically elected.
So which theory is right: is Kenya to blame or is the Office of the Prosecutor (OTP) at fault? It is probably a little bit (or a lot) of both.
UPDATE: In a motion now available online, the Prosecutor has clarified that she is seeking a three-month adjournment and provides details into the problems facing the case against Kenyatta. The prosecution also requested judges to convene a status conference at the end of January in order to update the Court as to “progress of the investigative steps”. Still, the OTP still sounds rather unsure as to whether they will be able to produce sufficient evidence to proceed with the trial:
The Prosecution therefore seeks an adjournment of the provisional trial date for three months, which will enable it to undertake additional investigative steps –including those not previously open to the Prosecution–to determine whether a case can be presented to the Chamber that establishes the Accused’s guilt beyond reasonable doubt.
On Twitter, Kevin Jon Heller makes a fascinating point: could Kenyatta oppose a delay?
On the surface, this might sound counter-intuitive. After all, a delay should be exactly what Kenyatta wants. But Kenyatta may want to the trial to proceed when the prosecution is at its weakest. Doing so might provide his defence with the best opportunity to have his trial thrown out altogether.