In April, the International Criminal Court threw out the case against Kenyan Deputy President William Ruto and journalist Joshua arap Sang. The Hague Trials Kenya asked Fergal Gaynor, the lawyer appointed to represent the victims in the Kenyatta case at the ICC for a reaction to the ICC judges' decision.
By Fergal Gaynor
New Year’s Day, 2008. Kiambaa, Rift Valley. A large group of armed youths, many with faces painted in white, barricaded people inside a church, placed paraffin-soaked mattresses at strategic locations and set them alight. 35 Kenyans died in the inferno. The attack shocked Kenya and was reported around the world. The Ruto and Sang case at the International Criminal Court (ICC) concerned that event and other brutal crimes.
For the survivors of the church fire, and for the tens of thousands of victims of other crimes during Kenya’s 2007-2008 post-election violence (PEV), their quest for justice on Tuesday received yet another setback. Trial judges at the ICC decided, by 2-1 majority, to terminate the Ruto and Sang case. An appeal might still take place. But the decision will be hard for many to accept. Interference with witnesses loomed large as a feature of the case. Last August, the judges who heard the trial noted “the element of systematicity of the interference of several witnesses in this case which gives rise to the impression of an attempt to methodically target witnesses of this case in order to hamper the proceedings”.
Three Kenyans were publicly charged by the Court for interfering with witnesses in the case. Kenya remains obliged to surrender them to the Court. It has not done so. Confirming some of those charges, a pre-trial chamber noted “the size and extent of organisation of the alleged criminal effort to corruptly influence witnesses”.
In January 2015, Meshak Yebei, a man who almost certainly was in a position to reveal details of witness interference in the case, was abducted, murdered and his body dumped in a game reserve hundreds of kilometres away. Nobody has been arrested.
“Unseen hands that had engaged in witness interference”
During the reading of the decision, presiding judge Eboe-Osuji, from Nigeria, noted “the incidence of witness interference at a disturbing scale”. Refusing to enter an acquittal, he said that “the extent of the evidence of interference is enough to make acquittal of the accused grossly unjust”.
He referred to “a coordinated effort to bribe witnesses, in order to prevent them from appearing in court" and denounced” the interference and “political meddling seen in this case". He returned to the theme often in his written opinion, noting “the unseen hands that had engaged in witness interference, the obvious aim of which is to frustrate the trial of the accused”. He added: “The incidence of interference was bolstered and accentuated by an atmosphere of intimidation, fostered by the withering hostility directed against these proceedings by important voices that generate pressure within Kenya at the community or national levels or both. Prominent among those voices were voices from the executive and legislative branches of government."
The Kenyan government has so far failed to hold accountable anyone at a mid-level or high-level of responsibility for crimes committed during the PEV. Kenyan President Uhuru Kenyatta rushed to congratulate his deputy president following the vacation of the case. He claimed that, as a result of the ICC's errors, “many victims await justice, and perpetrators are yet to be brought to account”. The reality is that it is Kenya which is primarily responsible for holding perpetrators to account.
What about the victims?
The African Union Panel of Eminent Personalities, dispatched to help bring the PEV to an end, included former UN Secretary General Kofi Annan, Mozambique’s Graça Machel and Tanzania’s Benjamin Mkapa. All wanted a Kenyan tribunal to try those responsible. So did Justice Waki, who headed a widely-respected domestic inquiry into the violence.
The Kenyan parliament repeatedly and deliberately failed to establish one. Under its own statute, the ICC could step in only if Kenya was unable or unwilling to investigate and prosecute. Kenya failed to act and so the ICC reluctantly stepped in.
Kenya has proven itself to be able and willing to pour huge resources into obstructing the process of bringing perpetrators to account at the ICC. In 2013 and 2014, I held 49 days of meetings with 839 PEV victims of the crimes charged in the Kenyatta case in the Nyanza, Western and Rift Valley regions of Kenya.
In 2015, following the withdrawal of charges against Kenyatta, I met approximately 700 of those victims in another series of meetings to discuss the termination of the case and associated issues. They made abundantly clear to me their total lack of faith in their own government’s willingness to deliver justice, decried its repeated promises to deliver fair compensation, and many expressed deep anger at the ICC’s inability to stand up to the Kenyan government’s bullying.
They also expressed desperation as to their own plight. However prosperous some Kenyans are, thousands of PEV victims live in serious levels of poverty. Their demands are modest in the extreme: a loan to start a small tea-selling business; a sheet of corrugated iron to repair the roof; a little money to help send a bright child to secondary school. The Kenyan government has delivered no assistance to most of those that I met.
Kenyan government's strategy to defeat ICC
The victims’ cynicism about their own government’s inability to deliver fair compensation while spending billions of shillings in order to get Kenyatta and Ruto off the hook is well placed. The Kenyan government’s strategy to defeat the ICC was multi-pronged. Large teams were dispatched to the UN Security Council, the African Union, and the ICC’s Assembly of States Parties with the aim of halting the cases.
At the same time, the government actively and unlawfully defied ICC orders to freeze assets; to provide provide critical cellphone, banking and other evidence of central relevance to Kenyatta’s whereabouts and contacts during the PEV; and to allow the interviews of critically important witnesses in a position to provide key evidence about those responsible for the PEV, such as senior police officers. All of this was, and is, in violation not only of the ICC Statute, but of Kenya’s own International Crimes Act.
Kenyatta publicly poured insults on the ICC. His government lobbied the AU assembly to adopt a resolution to immunise from prosecution sitting heads of state and government, thereby immediately creating an incentive for any leaders inclined to be murderous to hang on to power at all cost.
In parallel, the government made lofty but disingenuous promises which it failed to keep, such as written undertakings in 2011 to the ICC’s pre-trial chamber concerning its intention to fully investigate all PEV crimes to all levels. Leaks of confidential filings were rampant. The Trial Chamber in the Kenyatta case noted “a pattern of information contained in confidential filings being leaked to the media” and the “Kenyan government's cumulative inattention to the taking of appropriate measures to ensure the confidentiality of the proceedings”. Numerous promises to establish an ‘International Crimes Division’ of the High Court (ICD) remain unfulfilled.
The Director of Public Prosecutions in February 2014 confirmed that not one of the thousands of PEV files examined by a ‘Multi Agency Task Force’ set up to review them was prosecutable, and that the ICD (if it is ever established) will not handle any PEV cases. The government’s numerous promises to provide just compensation to all PEV victims, regardless of ethnicity, remain equally unfulfilled. The most recent promise came in the 2015 State of the Nation address, where President Kenyatta announced that 10 billion shillings has been set aside for reparations to the victims of the violence. None of it has reached any victims.
The Kenyan government’s attitude in respect of ICC rule changes was revealing. As a State Party, it is free to propose or oppose rule changes. It lobbied hard for rule changes intended to bring the trials to an end or to relieve high-level defendants of the obligation to appear in person. It opposed an amendment to the now infamous Rule 68,
which was intended in part to facilitate the admission of the initial evidence of a witness who is later bribed, intimidated or who disappears. After the amendment was adopted, the government poured huge resources into a campaign to ensure that it was not applied in Ruto’s trial, and after it was applied, poured more resources into trying to have it overturned on appeal. The government has never fully explained why it was so eager to protect the results of what was plainly a well-resourced campaign to bribe and intimidate witnesses in the Ruto and Sang case.
Uhuru publicly poured insults on the ICC. His government lobbied the AU assembly to adopt a resolution to immunise from prosecution sitting heads of state and government, thereby immediately creating an incentive for any leaders inclined to be murderous to hang on to power at all cost.
This is the background to this week’s announcement from The Hague. The details presented by Judge Osuji concerning the level of witness intimidation in Ruto’s case are surprising but perhaps not entirely unexpected. In the Kenyatta case, two of the most critical witnesses were known as witnesses 11 and 12. The Prosecution later said:
“Shortly after the Prosecution disclosed [to the Defence] the identities of Witnesses 11 and 12 in August 2012, the witnesses informed the Prosecution that purported Kenyatta intermediaries were attempting to locate them to offer a 'deal' for them to agree not to testify. One of the intermediaries was Ferdinand Waititu, a sitting member of parliament and an associate of Mr Kenyatta. In a series of controlled telephone conversations recorded by the Prosecution with the witness’s consent, Mr Waititu told Witness 12 that he wanted to meet with him to discuss assisting Mr Kenyatta to 'solve this fight' and the 'lump of money to be given'.
Mr Waititu indicated that he had spoken about the scheme to Mr Kenyatta and was keeping him informed of its progress. He explained that Mr Kenyatta wanted to avoid 'direct' involvement because he was worried about getting caught tampering with evidence.”
No cases in the ICC’s short history have been so affected by efforts by an ICC State Party efforts to obstruct the justice process and to vilify and discredit the court, accompanied by total non-prosecution at the domestic level. No cases have been as affected by simultaneous, well-organised, well resourced and ultimately successful efforts to bribe and to intimidate witnesses. The thousands of Kenyan PEV victims, whose chances of receiving justice and reasonable compensation for their losses are more distant than ever, do not deserve this. For them, this week has not been a victory for justice, but a victory for the obstruction of justice and a victory of the powerful over the powerless.
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