(Photo: Thomas Mukoya / Reuters)
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…
Christine Van Den Wyngaert (Photo: ICC)
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.
Legal Implications
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.
Kenyatta at the ICC (Photo: ICC)
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.
Justice in Conflict 
The question is whether anyone still believes the ICC can find Kenyatta guilty beyond a reasonable doubt. There appear to be so many doubts at such an early stage in the case that the Prosecution’s persistence looks more and more like delaying the inevitable – acquittal and vindication for Kenyatta, and acquittal and humiliation for the Prosecution/Court. Bensouda’s last hope is to stick to the law, and even that is proving impossible.
I would be right to blame racism for the writing of such an article. Congratulations to the Judge for refusing to take part in the power play initiated by the ‘1st World Countries’. They have the ability to bring their ‘Journalists’ to poor African countries, take footage of fighting then put it in their own ‘context’ for their home viewers(who are blind to lies) to make of it what they will. Take the recent revolution in Egypt, who made the youth revolt? Wasn’t it their zeal to see off corrupt leadership from their country. I AM AN ADULT KENYAN and unlike the FOREIGNER who wrote this article, I saw first hand how the announcing of the 2007 poll results affected those around me. People didn’t vote basing their descisions on issues, people voted along TRIBAL LINES!! Even the shallowest of investigations can show that. What was witnessed was TRIBAL CONFLICT. I just wish the author of this article lived in Kenya to witness the below 0 interest Kenyans have on this issue. Why else would the 2 suspects go on to win the 2013 polls in an election that was proven to be free and fair even by the ‘International Observers’? I’ll help you answer that, its because that stone thrower knew he wasn’t ordered in any way to do what he/she did, that rapist who had lived with the neighbour for 20 years too and so did any other offender during the chaos. If you were honestly interested in the Kenyan case, you would have made an attempt to attend one of the TJRC(Truth Justice and Reconciliation Commission) hearings, you would have seen rapists apoligize to their victims and be forgiven, some people who evicted their neighbours gave them back their property and land, they knew they weren’t paid to do what they did, that’s why they aren’t interested in seeing someone else pay for what they did. Why are there people who are still in IDP camps? Why are they not going back to their farms even if the ‘suspects’ are being prosecuted? Isn’t it because they know THE REAL REASON WHY those events took place? Tribalism? The racist who wrote this article is not only a racist, but someone ignorant to the law. How else can you explain his sympathy for the prosecution and ignoring the fact that A SUSPECT IS PRESUMED INNOCENT UNTIL PROVEN GUILTY?
One would be hard pressed not to believe that the series of articles written on the Kenyan cases on this site, seek to uphold the prosecution in a saintly position, above any misconduct and the indictees anything but innocent with trial simply being a procedural rubber stamp by the judges.
Such is the fallacy of the ICC cases. Judge Wyngaert was absolutely right, the prosecution initially claimed it had evidence against the indictees in order to file charges against them. The prosecutor relied on third parties to provide it with information instead of conducting its own independent investigations. It now seeks to compel the government of Kenya to provide it with evidence it did not have in the first place and the little it had, was clearly fabricated when it was used to confirm the charges. Such is the hallmark of the sham of a prosecution based on sensationalism and marked by endless pronouncements for the court of public opinion instead of the judges.
In reality in any election including American elections, the outcome is often based on the candidates messaging or lack of it. The Kenyan electorate is more sophisticated than the the simplistic portrayal made here and elsewhere about the ICC being the key factor that turned the election. In December 2012, the Electoral body in Kenya conducted voter registration across the country. The registration numbers after the exercise concluded showed heavy registration in Pro Uhuru and Ruto areas. In 2007, the opposing candidate, Raila had key lieutenants, by late 2012, the former members of the pentagon had defected to the Uhuru-Ruto coalition. In 2007, it was Raila Odinga who called for mass action. Youths took to the streets, burnings, looting, raping and engaging in all manner of violent activities. Mostly notably they chanted, “No Raila, No Peace”. Raila did not win the 2013 election.
It is not a game of perception, it is about reality, the average Kenyan can see what a sham of a case the prosecutor has or in the alternate the crumbling nature of the cases. Kenyans know who attacked them, they saw their attackers, they did not see Kenyatta, Ruto or Sang. When the true perpetrators and their leaders (2007 contestants, in particular those calling for mass action), Maina Njenga (leader of the Mungiki) do not face any charges or investigation for their supposed roles, it is safe to assume that the average lay Kenya who understands how things work and happen in Kenya, knows what a scapegoat is, can only reasonably conclude that it is a sham of a prosecution that can never hope to deliver justice to the victims but is instead a tool of civil society (heavily funded by western actors) and western nations with the intent of regime change.