Monday, October 20, 2014

Kenyatta case at the ICC: three options available for the ICC judges

The two status conferences held by the Trial Chamber V (b) of the International Criminal Court (ICC), in the case of the Kenyan President Uhuru Kenyatta on 7 and 8 October 2014 represent a significant and important test for the ICC’s accountability and credibility in Africa and around the world. In fact, for the first time in the history of the international justice system, a sitting head of state appears before an independent and permanent Court as an indirect co-perpetrator for crimes against humanity which include murder, rape and persecution committed during the 2007-2008 post-election violence which left over 1,000 people dead and half a million displaced.  

Several human rights NGOs have emphasized the uniqueness of the case. For the NGO Physicians for Human Rights, the President’s participation at the second status conference on the 8th October, although reluctant, is a “remarkable step forward in holding the most powerful officials accountable for their action[1] ”. For the International Federation for Human Rights, these conferences should be seen as the “opportunity to place victims’ rights to truth and justice at the center of the ongoing debates on the fate of this case”[2]. The conferences discussed the status of cooperation between the Court and the Kenyan government. According to the Prosecutor, the Kenyan authorities failed to ensure full cooperation with the Court and have obstructed the course of investigation by intimidating witnesses and victims. As time progressed, more and more witnesses disappeared, changed their accounts or simply refused to give their testimony. The victims are now represented in a number of 725 by the Legal Representative for victims Fergal Gaynor.

The status conferences were not about the determination of the guilt and innocence of Uhuru Kenyatta but rather considered whether the trial should continue or not. This required hearing all parties on specific issues relating to the extent of cooperation between the Kenyan Government and the Court. A defense lawyer for the President, Mr. Steven Kaj, asked the Court to terminate the case as the prosecutor had failed to submit evidence establishing Kenyatta’s guilt beyond a reasonable doubt. However, if the case is dismissed due to the lack of evidence, this would be a serious setback for the Court and its reputation. Victims of the crimes have not obtained adequate and comprehensive redress at the national level. Therefore, only the ICC as most African NGOs have pointed out, remains their hope to obtain justice. In fact, there is no alternative to the ICC for some African countries as domestically there is little political will to prosecute perpetrators of atrocity crimes.

Furthermore, the Kenyan government has no intention to comply with its constitutional obligations deriving from the ratification of the Rome Statute. However, all aspects of the case and more specifically, Kenyatta’s compliance with the Court’s order that he attend the hearing has sparked fierce criticism among African heads of state. They are heavily divided over the ICC, with East African leaders hostile to the court and their West African counterparts in favor of it. Opposition towards the 11-year-old ICC runs deepest in East Africa - not surprising as two of the region's presidents - Sudan's Omar al-Bashir and Kenya's Uhuru Kenyatta - have been indicted, while Kenya's Deputy President William Ruto is already on trial on charges of crimes against humanity. The countries in East Africa that are most vocal in their opposition to the ICC are: Kenya, Sudan and Uganda. West African countries like Nigeria and Ghana are more supportive of the court. However, there is a fundamental divide between African leaders and many African people. About 130 non-governmental organizations wrote an open letter to the African Union (AU), warning that "any withdrawal from the ICC would send the wrong signal about Africa's commitment to protect and promote human rights and to reject impunity". Former UN Secretary-General Kofi Annan has also warned African leaders not to quit the ICC. The two conferences at the ICC are considered a proof of the accountability of the Court against accusation of politically motivated trials in Africa.

 Before the conference
An important issue discussed before the conference was the requested attendance of the President to the second hearing which was criticized by Kenyatta as an intensely politically motivated threat to Kenyan sovereignty. His defense lawyer, Mr. Kaj, asked the chamber to excuse the President from participating to the conference pursuant to Rule 134 quater or to adjourn the status conferences and to let the defendant to attend on another date via video link pursuant to rule 134 bis of the Rule of Procedure and Evidence. However, the Chamber refused to allow this request not only underlining the misuse and misplacement of rule 134 quater and bis, but also taking into consideration the importance of the issues to be addressed and the interest of justice which requires the defendant’s presence in person.

The day before the hearing, President Kenyatta announced that he would not appear in the Court as Head of State, but instead as a private individual. "I chose not to put the sovereignty of more than 40 million Kenyans on trial since their democratic will should not be subject to another jurisdiction," he said before the Senate and the National Assembly the day before the hearing. In this speech, he proclaimed his innocence and accused the Court of partiality. Even still, Kenyatta made his appearance more as a political charismatic leader than a private citizen; his convoy received a presidential welcome. Flag-waving crowds of Kenyan citizens surged as his police-escorted car pulled up. International TV crews jostled to get him in their frame. Around 100 politicians flew to The Hague, paying themselves air fares, a public demonstration of support for their president.

As a result, some newspapers have argued that the President and his Deputy Ruto have skillfully managed to turn their indictments for crimes against humanity to their political advantage, easily slipping into the role of victims.

The two status conferences
On the 19th of September, Trial Chamber V (b) postponed the beginning date of Kenyatta case scheduled previously for the 7th of October in order to hold a hearing request made by the defense to dismiss the case and by the Prosecutor to adjourn the case indefinitely pending delivery of records requested from the Kenyan government. The Chamber considered art. 64(2) of the Rome Statute of the ICC and made this decision to postpone to ensure that the trial was fair and expeditious with full respects for the rights of the accused and due regards for the protection of victims and witnesses. With the same decision, the Chamber convened the two status conferences to discuss the status of cooperation between the Government of Kenya and the prosecutor. For the first conference, the Chamber asked the presence of one representative of the Government, for the second conference, it asked the accused to be present. The hearing was held before Trial Chamber judges (Ozaki, Fremr, Henderson), in the presence of the Prosecution (Bensouda, Stewart, Gumpert), the Defense (Kay, Higgings) and the legal representative of the Victims (Gaynor).          

The Court wanted Mr. Kenyatta to explain allegations that evidence against him had been withheld by the Kenyan government - a claim rejected by Kenyan Attorney-General Githu Muigai, who appeared before the court at the first conference.

Both two status conferences took place in a similar way. The hearings were divided into two parts. During the first part, the three trial judges asked the prosecution questions related to the lack of evidence and the two specific reasons why the option to dismiss the charges against Kenyatta was not considered appropriate by the prosecution in the notice of the 5th September 2014. In this notice, Prosecution stated that “ it would be inappropriate for the Prosecution to withdraw the charges against Kenyatta before the Government complies with the cooperation request. First, doing so would undermine the purpose of the Chamber’s decision to ensure that the Government of Kenya fulfills its cooperation obligations to the Court. Second, the accused person in this case is the head of a government that has so far failed fully to comply with its obligations to the Court, and, under the Constitution of Kenya, is ultimately responsible for that failure.” 

In the second part of the hearing, each lawyer from the Prosecution, Defense and legal representation of Victims submitted final considerations to the judges. At the conferences, scores of Mr. Kenyatta's supporters packed the public gallery as the hearing got under way.

Why an indefinite adjournment of the case?
The Prosecutions’ arguments
The Prosecutor’s statement included two parts. In the first part, Prosecutor Bensouda explained how the case should be handled going forward, in the second one, prosecution lawyer Gumpert described the evidence against Kenyatta. The adjournment of the trial and its dismissal were considered the only two viable options to encompass the deadlock of the case. “Any other solution, including the adjournment of the case to a fixed date or by a deferral to a decision of the Assembly of States Parties will be ineffective as the Government of Kenya has already been granted six months to comply with the cooperation request and from an evidentiary point of view it did not show any willingness to provide the required evidence”, the prosecution said.

“Although one could imagine ways to fix a specific date to resume the trial, for instance the next political elections in Kenya, the only realistic date is when the Republic of Kenya does what it is bound to do under the Rome Statute.”  Additionally, the prosecution explained why an indefinite adjournment would be consistent with the accused’s rights and as well as with the integrity of the proceedings and the interest of justice. “When an accused comes before any tribunal accused of very serious crimes and where investigation of those crimes has been impended by a third party, there is obviously a very great interest in sending the message that such interference, such obstruction will not bring proceedings to an end, that the Court will be resolute in pursuing the case which has been brought before it, despite any obstruction in investigations. This would be the case even if there was not the extra dimension of the defendant.”

The Prosecutor concluded her argument warning the Chamber about the consequences that a termination of the case could have on the international community and on the ICC states parties. “It would not be in the interest of justice….for the Court to make a ruling which will effectively be interpreted as the Court saying, if a country sticks out for long enough obstructing proper inquiries being made by the prosecutor, despite the Court having made a finding that the obstruction is improper, then the case against that person that country wants to protect will go away”.    

When the presiding judge asked the Legal Representative of the Victims (LRV) how an indefinite adjournment of the case was compatible with the accused’s rights, lawyer Gaynor replied that it is in the defendant’s power to ensure that his trial could be expeditious. He also mentioned as case law, a precedent from the ICTY, its decision of the 11th February 2009, “Prosecution motion for an adjournment”. In its decision, the Court was aware of the fact that an adjournment of the trial could have a detrimental effect on the promptness of the proceedings, but by majority it held that it is duty to preserve the fairness of the trial and that the fairness of the trial must prevail over time considerations. Unlike the prosecution, the LRV asked the Chamber to allow an adjournment of the trial until the Assembly of States Parties (ASP) decides what to do with the non-cooperating state.

Kenyatta’s constitutional obligation to comply with international duties
The prosecutor added that some witnesses claimed to have received money from the President, but that no allegation has been made that Kenyatta as President has taken action to prevent the prosecution from obtaining the records they were seeking from the Government of Kenya. The prosecutor added that “There is no evidence of action or inaction that he has taken or refrained from in the course of the period between our request of cooperation and today” but that Kenyatta since 2013 had a specific duty under the Kenyan constitution to ensure that the republic of Kenya complies with its international obligations.  

Outstanding evidence missing
The prosecutor also mentioned what kind of evidence the Government of Kenya failed to provide. The evidence outstanding includes Kenyatta's bank statements, tax records and telephone records relating to the period of unrest, believing that the information could prove Kenyatta's alleged part in bankrolling and orchestrating the violence. The prosecutor confirmed that the evidence exists, but that he cannot use it as he has been obstructed from doing so. According to the LRV, Fergal Gaynor, Kenyatta as President of the Republic of Kenya is the head of the entity which failed in providing outstanding evidence and therefore he must ensure that such entity complies fully with its duty.

The LRV reiterated the Prosecution’s request regarding bank statements and mobile telephone records which are still missing but are relevant for the case.

Intimidation of witnesses, obstruction of justice and failure to cooperate
“This case is about the intimidation of witnesses and obstruction of Justice.” With this straightforward statement the LRV concluded his final submission to the Chamber asking if it would be really fair for victims to pay the price of a Government unwilling to cooperate with the Court.

“If the Chamber withdraws this case, other may think that the ICC prosecutor can be easily overcome by a combination of bribery and intimidation. Some often say that in every case where the prosecutor fails in providing evidence to support his case a price must be paid. It would be unfair for the victims to pay the price of the Government of Kenya non-compliance and deliberately frustration of its international duties.”         

The Defense arguments
The defense lawyer Steven Kay spoke on behalf of the President who decided to be silent. He said the government had co-operated with the prosecution requests where it was possible to do so and he asked the judges not only to dismiss the case, but also to enter a verdict in favor of his client. “What you heard from the prosecution was a scandalous misrepresentation of the quality of their case as well as the reasons for not pursuing this case”. Mr. Kay said that because there is no evidence, Kenyatta was entitled to his verdict of not guilty. There had been no allegations made against his client or him as a lawyer. “The head of state issue that has been brought to bear as an allegation is not founded upon substance”. 

The conference ended with the ICC spokesman stating that a ruling will be announced at a later day. As he left the Court, Mr. Kenyatta told his supporters in Swahili: "We know where we are coming from, we know where we are now, and we know where we are going. No-one will tell us where we are going and yes, we will decide for ourselves.

Several times, Kenyatta's lawyers have dismissed the requests for his bank and telephone records as a strategy designed to cover up for prosecutors' lack of evidence. "Whatever evidence we produced, further inquiries were suddenly made," Kay said.

Possible scenario: three options for the Chamber
The options that the ICC’s judges could take into consideration in this unique case are three. The first is the termination of the case and dismissal of the charges against the defendant. The Chamber may dismiss the case for lack of evidence, if it finds that the prosecutor fails to prove Kenyatta’s guilt beyond reasonable doubt and therefore the accused will be innocent as there is no evidence enough to substantiate his responsibility for the commission of crimes of which he is accused. This is the decision that president’s defense team has asked the Chamber to make following regulation 60 of the Office of Prosecutor. The second opinion is the indefinite adjournment of the case until the Government of Kenya fully complies with the Prosecutorial request of evidence in accordance with art.64 (2) of the Statute as the OTP has asked the Chamber to do.

The third option is the adjournment of the case to a definite date in order to give the Assembly of States Parties the opportunity to act. This request was made by the LRV in case an indefinite adjournment could not be allowed. This last option has been clearly criticized by the Prosecutor as it would represent an interference of a political body into the judiciary against the independence of the judges of the Court. By deferring the case to a decision of the ASP, the impartiality and independence of the Chamber would be affected by the political relations within the ASP. Also there is no provision in the Rome Statute for a referral to the ASP.  

The post conferences effect on Kenya’s witnesses and public opinion
Two days after the conferences, at the United Nations Headquarters, in New York, there was a press conference on the topic where representatives of different NGOs blamed the over disclosure of information made by the Chamber in relation to the identity of witnesses.

According to an NGO representative, Stella Ndirangu of the International Commission of Jurists in Kenya, six witnesses have been killed as a result of such disclosure of evidence. This criticism was brought by the International Commission of Jurists-Kenya and by the Kenyans for peace with Truth and Justice. Both NGOs argued that there had been too much time between the disclosures and the hearings in the case, which allowed the identity of witnesses to be discovered.

Despite these observations, Kenyan human rights NGOs continue to support the ICC and its mandate to fight impunity of heads of states. A recent statement issued by Human Rights Network Uganda (HURINET-U) and the Uganda Coalition for the ICC has expressed concerns about remarks made by the Uganda Prime Minister Museveni and the Kenyan President about the opportunity to review their membership to the Court. The Human rights NGOs called on African states to respect their commitment to and cooperation with the ICC.   

Written for AMICC by Miriam Morfino

[2] Cfr., kenyatta-before-the-icc-judges-victims-need-truth-and-justice?utm_source=CICC

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