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
[1] Cfr., http://physiciansforhumanrights.org/press/press-release/kenyattas-appearance-at-the-hague-a-welcome-step-for-
[2] Cfr., http://www.fidh.org/en/africa/kenya/kenya-icc/16189-uhuru-
kenyatta-before-the-icc-judges-victims-need-truth-and-justice?utm_source=CICC
