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De facto immunity for Kenyan President? Deadlock in the Kenyatta case at the International Criminal Court

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Kenyan President Uhuhu Kenyatta at a status conference in the ICC, 8 October 2014 (Source: ICC Flickr)

Kenyan President Uhuhu Kenyatta at a status conference in the ICC, 8 October 2014 (Source: ICC Flickr)

By Rosemary Grey, University of New South Wales

Almost three years ago, pre-trial judges in the International Criminal Court (ICC) confirmed charges against Kenyan politicians Francis Muthaura and Uhuru Kenyatta, for crimes against humanity allegedly committed during Kenya’s 2007-2008 post election violence. Since then, ICC Prosecutor Fatou Bensouda has faced major challenges in collecting the evidence she needs to prove the charges in Court.

In March 2013, Prosecutor Bensouda was forced to withdraw the charges against Muthaura because several key witnesses had died, become too afraid to testify or admitted to taking bribes, and the Kenyan Government had failed to assist in uncovering crucial evidence. It is a live question whether the case against Kenyatta, who was elected President of Kenya in 2013, will remain before the Court.

The case

President Kenyatta has been charged as indirect co-perpetrator of crimes against humanity (murder, rape, forced transfer, political persecution and other inhumane acts) allegedly committed by supporters of the Party of National Unity against supporters of the Orange Democratic Movement following Kenya’s 2007 presidential election. Crimes allegedly committed by supporters of the Orange Democratic Movement are the focus of a separate case in the ICC, against Kenya’s Vice President William Ruto and prominent media personality Joshua Sang.

The Kenyatta trial was scheduled to begin on 7 October this year. In September, however, the ICC Prosecutor announced that she would not be in a position to proceed to trial on that date because the evidence available was not sufficient to prove President Kenyatta’s criminal responsibility beyond reasonable doubt. The Trial Chamber therefore vacated the trial date and called a status conference to hear how the Prosecution, Defence, Kenyan Government and victims wanted to proceed at this “critical juncture” in the case.

The status conference

The status conference, held on 7-8 October, was a dramatic event. President Kenyatta attended, making him the first sitting president to appear before the ICC. More than 100 Kenyan MPs reportedly flocked to The Hague to show him their support. Mr Kenyatta, however, made it clear that he was not appearing before the Court as Kenya’s head of state. On 6 October, he announced that he was stepping down from the presidency for the duration of the status conference, to “protect the sovereignty of the Kenyan Republic”. This announcement came in the wake of a series of resolutions by the African Union opposing the ICC’s attempts to prosecute the Kenyan President and Vice President and urging the UN Security Council to defer the cases in accordance with the ICC Statute.

The status conference begin with statements from the Prosecution, who argued that the case had reached a “deadlock” due to Kenya’s failure to supply crucial evidence, including the President’s bank and telephone records. It asked the Chamber to find that Kenya had failed to uphold its duty to co-operate with the Court and to adjourn the case until Kenya provided the records. The Prosecution could not predict when that would happen, but suggested that “while the accused person is still the head of that government, that day will not come.”

The Prosecution did not suggest that the President had personally interfered with the collection of evidence. Rather, it argued that because the President was constitutionally responsible for ensuring that Kenya complied with its legal obligations to cooperate with the ICC, it would “lie ill in his mouth” to claim that he had been unfairly affected by the delay in the proceedings.

The Kenyan Attorney-General spoke on Kenya’s behalf. He flatly denied any suggestion that the Kenyan Government was failing to cooperate with the ICC because of Mr Kenyatta’s official position, and insisted “[i]t is totally untrue to suggest that we are deadlocked because the Government of the Republic of Kenya is failing to do something”. He blamed the lack of evidence on the Prosecution’s failure to conduct proper investigations, and argued that if the Prosecution supplied searchable information such as bank account details or telephone numbers, Kenya would provide “whatever you need within 72 hours”. He told the Chamber, and the Kenyans assembled in the public gallery, “We are being made sacrificial lambs about a matter that has nothing to do with the Republic and has something to do with the professional conduct of the case.”

The Defence took a similar position to the Government. It argued that Kenya’s failure to provide some of the requested records reflected the nature of the request, rather than any obstruction on the part of the Government. Given the Prosecution’s inability to prove its case, the Defence argued that the Chamber should terminate the proceedings and acquit President Kenyatta of all charges. It argued that the President was, “[e]ntitled to his verdict of not guilty … to show that those who accused him failed to prove their case or have a case that they thought worthy to bring before the Court.”

The victims’ legal representative argued that the President was in “total control” of the delay in the case, because he “contoll[ed] the government which is unlawfully obstructing the Prosecution’s access to evidence”. He described the Kenyan Government’s response to the case as a “long and bitter campaign of attrition, the ultimate aim of which has been to see this case collapse” and he warned that if the Chamber terminated the case, it will have “forced victims and not the accused to pay the price for obstruction of justice”. He therefore opposed a termination of the case or a withdrawal of the charges. He then highlighted the broader implications of the case, stating:

If the Trial Chamber terminates this case, others will draw the conclusion that a prosecution at the ICC can be effectively undermined through a combination of bribery, intimidation and unlawful obstruction of access to evidence. If the Trial Chamber terminates this case, it will generously reward the government controlled by the accused for its refusal to comply [with the Chamber’s orders to provide the records].

The status conference closed with final remarks by the Defence, who stated: “there is no evidence because if there was evidence, we would have a trial.”

Kenyans watching the high-stakes status conference in the Kenyatta case. Source: Reuters

Kenyans watching the high-stakes status conference in the Kenyatta case. Source: Reuters

Looking forward

The case against the Kenyan President hangs on by a thread. All parties agree that the Prosecutor does not have enough evidence to proceed to trial; the question is who is responsible. The Prosecution and victims argue that the Kenyan Government has effectively brought the case to a standstill by withholding evidence, a claim that the Government and the Defence deny. It remains to be seen whether the Trial Chamber will adjourn the proceedings indefinitely as the Prosecution hopes, terminate the case as the Defence requests, or find some other solution to the crisis at hand.

Legally, the provisions of the ICC Statute “apply equally to all persons without any distinction based on official capacity.” The case against the Kenyan President, which is on the verge of collapse due to a lack of evidence, calls into question whether that can ever be true in practice.

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