By Rosemary Tollo in The Hague
An experts’ report about how the Kenya cases at the International Criminal Court collapsed has begun to unravel after it emerged that critical actors were never interviewed or deliberately excluded from the review.
Three international prosecution experts who reviewed the Kenya cases either failed or refused to interview critical actors in the Kenya cases, turning the study into a navel gazing exercise focused on 30 former and current staff at the Office of the Prosecutor.
Former ICC Prosecutor Luis Moreno Ocampo, who received the harshest criticism for his alleged autocratic leadership style, countered the report by saying the experts arrived at their conclusion using an autocratic method: “They did not interview me or allow me to provide explanations to their concerns.”
Ocampo initiated crimes against humanity charges against Uhuru Kenyatta before he became Kenya’s president, alongside former head of the public service Francis Muthaura and police commissioner Hussein Ali, but the charges against the latter were not confirmed. The case against Muthaura was withdrawn for lack of evidence, followed by that of Kenyatta for similar reasons after alleged witness interference. As prosecutor, Ocampo simultaneously charged William Ruto, who became Kenya’s deputy president, alongside journalist Joshua arap Sang and Industrialisation minister Henry Kosgey. Charges against Kosgey were not confirmed, and although the Ruto and Sang were put on trial, the judges terminated their case at the close of the prosecution presenting its evidence.
Since the release of the report this week, despite submission to the Office of the Prosecutor in February 2018, the Legal Representative for the Victims in one of the Kenya cases said he volunteered to participate in the review but his offer was not taken up.
Fergal Gaynor, who represented victims in the case against Kenyatta, pointed out that the investigation and prosecution of all three principal suspects in the case collapsed before a single day of trial. “No charges against any other person in the case have been brought, and there have been no public applications by the Prosecutor under article 70 of the Rome Statute, which deals with bribery and intimidation of witnesses.”
Although Kenyatta’s lawyer Steven Kay was also not contacted for his views, he said in a statement to JFJ: “The reasons for the failure of the Kenyatta trial are well known to us and covered a wide range of systemic failures at the ICC. Simply put, the defence raised many cogent issues that demonstrated the prosecution was rotten, but we were deliberately ignored. Much could have been learned by the experts who reviewed the case in speaking to those who could accurately describe how and why it was a doomed case as demonstrated at the Preliminary Hearing and on its subsequent passage through the ICC.”
Kigen-Katwa, Sang’s lawyer, was not similarly reached by the experts, but he nonetheless agreed with the report’s more significant findings: “In so far as [the report] alludes to the incompetence and negligence of the … prosecutor and the staff [it] is accurate,” he said. “Investigations were shockingly poor. Blatant and obvious lies were not uncovered or otherwise overlooked, and used by prosecutors as evidence to get a conviction at all cost,” he added.
Questions are emerging about whether the Office of the Prosecutor at the ICC learnt anything at all from Kenyan cases, which collapsed like dominoes at the confirmation of charges, just before trial, and at the end of prosecution presenting its evidence in the last one.
Katwa argued that the report failed to consider the judgment of the Trial Chamber when it terminated the case against Sang and Ruto. “The report focused on witnesses that did not come to testify and ignored completely the worth of those that did. Almost 950 days of trial, almost 7,000 pages of prosecution documentary evidence and 29 prosecution witnesses did testify. The report does not look into how the Prosecutor presented witnesses [whom] the Trial Chamber found it had to view with “serious caution”, who were “willing to lie in return for personal gain”, who were “deceitful” and that the Court had “serious questions regarding (their) trustworthiness.”
While Katwa agrees that Ocampo carries much of the blame, “the reality is that these shoddy cases were prosecuted under the watch and leadership of Fatou Bensouda and the Deputy Prosecutor James Stewart. They are as much to blame.”
“The defence had directly spoken to Stewart and offered to provide all our evidence so that article 70 [investigations] will be pursued against prosecution witnesses who had told lies on the stand. The prosecutor’s office rejected the offer and refused to act. The defence request to the Court to appoint an independent amicus prosecutor to investigate and prosecute witnesses and staff for article 70 [violations] was also vehemently opposed by the Prosecutor.”
Gaynor, on the other hand, argues: “[At] the collapse of the cases, the Prosecutor ceased active investigation in Kenya 2 (the Kenyatta case). The Assembly of States Parties had taken no action in respect of the formal referral of Kenya to it for non-cooperation in Kenya 2.
“There has been no real justice at the ICC, or in Kenya, for the victims of the PEV. We cannot escape that fact,” said Gaynor.
Following the withdrawal of the charges against Kenyatta in mid 2015, Gaynor says, his team undertook a series of meetings in Kenya. “We met over 700 victims of the charges in the case against Kenyatta. During those meetings, the victims overwhelmingly expressed (many in direct and unambiguous terms), anger at the ICC’s failure to deal with what was clearly a well-resourced effort by the Government of Kenya to frustrate the ICC cases,” Gaynor said.
He added: “The victims expressed a strong wish for the ICC Prosecutor to carry out a prompt and thorough investigation and prosecution of those responsible for the crimes against them and for trials to commence without delay. After that series of meetings, my team and I filed on the victims’ behalf an application on August 3, 2015. We argued that the Office of the Prosecutor had failed to ensure, in accordance with its obligations under the Statute, the effective investigation and prosecution of the crimes committed against them, and that the OTP had failed to make effective use of the broad range of tools made available to it under the Statute. These included tools such as article 87.7, to counter blatant non-cooperation by the Kenyan government, and article 70, to counter bribery and intimidation.”
In a response, Gaynor adds, “the Prosecution dismissed our concerns as speculative. The summary of the experts’ report released demonstrates that each one of the assertions made on the victims’ behalf in that application concerning the inadequacy of the investigation and prosecution was well founded.
“The victims of the post-election violence have well-recognised rights under the Statute to truth, justice, reparation and an effective remedy. They have received none of these. It is now time to revisit the question of how best to ensure respect for the rights of the tens of thousands of victims of the post-election violence in 2007 and 2008 to an effective remedy for the brutal crimes committed against them,” Gaynor insists.
Ocampo has criticised the experts for challenging the policy to prosecute “those most responsible” instead of focusing on Kenya’s authorities interfering with witnesses.
Anticipating criticism on her inactivity on witness interference, current Prosecutor Fatou Bensouda claims that her office does not have the resources to open article 70 investigations in every situation. Bensouda deputized Ocampo for eight years before succeeding him as prosecutor.
She argues that article 70 investigations and prosecutions are reserved for the most egregious cases that have had, historically, the most deleterious effect on proceedings.
Katwa believes that the continued collapse of cases and wastage of funds before and after the Kenya cases is evidence that the OTP in its current form is in need of a complete and thorough overhaul. The report comes against the backdrop of a growing momentum for change and review at the ICC. Although the experts concluded that many changes for the better had been initiated at the OTP in the past few years, the full text of the report has not been released to the public.
Ms Brenda Hollis, one of the three experts who led the review, has been offered an opportunity to react to the criticism of the methodology of the report, but she has not yet responded to JFJ. Hollis, a former Prosecutor for the Special Court for Sierra Leone teamed up with Mr Robert Reid, Chief of Operations at the UN International Criminal Tribunal for the former Yugoslavia and the International Residual Mechanism for Criminal Tribunals, and Ms Dior Fall, former Senior Trial Attorney and Senior Appeals Counsel at the International Criminal Tribunal for Rwanda in carrying out the review.
Although Bensouda said many of the report’s recommendations had already been implemented, it is emerging that the review did not go deep enough to cull useful lessons from one of the most challenging episodes in the history of the ICC.
Thomas Verfuss and Kwamchetsi Makokha contributed to this story.