By Kwamchetsi Makokha in Nairobi
Was Luis Moreno Ocampo a bad prosecutor of the International Criminal Court?
Experts reviewing the collapse of the Kenya cases at the ICC say he was autocratic and a micro-manager, causing the feisty Argentinian to accuse them of covering up witness tampering and condemning him unheard.
Over 21 months since the three experts submitted their review report, ICC Prosecutor Fatou Bensouda Tuesday finally released only the five-page Executive Summary of lessons from the Kenya cases, which throws the feisty founding ICC prosecutor under the bus, blaming his autocratic leadership style, poor management skills and inexperienced staff for the debacle. Another 90 pages of the main report, containing minutiae of what the experts said went wrong, remains confidential and therefore outside public view.
Although Kenyan civil society organisations published Impunity Restored: Lessons learned from the failure of the Kenyan cases at the International Criminal Court in 2016, the experts report is the first formal review at the ICC of what went wrong in prosecuting the charges.
“Prosecutor [Ocampo’s] leadership could best be categorised as autocratic, not open to contrary assessments or viewpoints, too often marginalising those who disagreed with him or reacting angrily and threateningly,” the report says. The experts, who interviewed 30 former and current court staff and reviewed numerous documents and statements, say Ocampo instilled an attitude that the Office of the Prosecutor must go forward with the Kenya cases, must save the cases, regardless of the evidentiary gaps, and that any other view was disloyal. Senior leaders, who would include the current prosecutor, reportedly did little to protect their subordinates from Ocampo’s “angry, threatening reactions” to those whose assessments were contrary to his views.
The report also excoriates Ocampo for focusing on “bringing peace to the region or demonstrating the relevance of the ICC”, without effective prosecutorial action based on law and facts.
The experts further accuse Ocampo of picking targets and imposing deadlines that burdened prosecutors with weak cases, relying on one or only a small number of insider witnesses whose evidence could not be independently verified. “The prosecutorial process was hampered by deadlines … based on considerations other than sound prosecutorial practice … [and] prevented completion of the legal analysis at the preliminary examination stage, and resulted in premature application for authorization to open an investigation into the Kenya situation, charging decisions, applications for summonses to appear, and confirmation of charges hearings,” the report says.
Ocampo charged Uhuru Kenyatta, then deputy prime minister and now president, former Head of the Public Service Francis Muthaura and former Police Commissioner Hussein Ali in one case, and Ruto, Sang and former Industrialisation minister Henry Kosgey in the other. Charges against Ali and Kosgey were not confirmed.
Bensouda, who deputised Ocampo for eight years before succeeding him in 2012, withdrew crimes against humanity charges facing Kenyatta in December 2014 after she failed to muster evidence to go to trial. The trial of Kenya’s deputy president, William Ruto, and radio journalist Joshua arap Sang was terminated in April 2016 because of insufficient evidence, with one judge refusing to grant an acquittal citing “intolerable levels of witness interference”. The three were the last men in the ICC dock for crimes allegedly committed during the post-2007 election violence in Kenya in which 1,133 people were killed, some 900 sexually violated and over 600,000 were displaced. In both cases, the prosecutor has insisted the charges had collapsed under the weight of witness interference including killing, bribery and intimidation.
Ocampo has criticised the report for failing to suggest how the witness interference that affected the trial phase could have been controlled; and accused the experts of launching “unfounded personal attacks, including on the current prosecutor” and making baseless challenges on the quality of prosecution staff.
The experts – Ms Brenda J Hollis, former Prosecutor for the Residual Mechanism for the Special Court for Sierra Leone; 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 – conclude that the chances of the prosecutor succeeding in the Kenyatta case were slim.
“Absent the witness interference campaign, it is very possible the Prosecution would have been successful in the case against Ruto,” the experts say. “Even absent this interference, it is much less likely the Prosecution would have prevailed in the other cases.”
Bensouda, who is due to retire from her post in June 2021, foreran the damning report with a statement of her own outlining steps already taken to implement a great majority of the team’s recommendations but rejected to assent to three: consolidating legal advisory functions; not seeking authorisation to open investigations in risky situations; and initiating investigations into witness interference.
“OTP does not have the resources to open article 70 investigations in every situation,” she says, but adds that the prosecutor could seek the assistance of the relevant states to investigate and prosecute instances of witness interference committed on their territory. The fight-back is indicative of an internal fallout at the OTP following the presentation of the report and could explain the bristling language and defensive posture around recommendations to reform the bureaucracy in OTP’s Jurisdiction, Cooperation and Complementarity Division.
The experts were concerned that too many staff positions were filled by individuals who did not have the necessary experience and skill set to deal with complex investigations and prosecutions involving high level individuals.
“The Kenya situation presented unique challenges for the OTP,” explained Bensouda, who took over the case after Ocampo’s nine-year tenure ended. “While my office spared no effort to advance and salvage the cases in the Kenya situation, and had to take difficult but professionally responsible decisions in the process, the experience in the situation provided learning opportunities that have assisted, and continue to assist, the office,” she adds.
The experts focused primarily on the early years of the OTP’s handling of the Kenya situation, when ‘the die was cast’, rather than the later trials.
Ocampo’s approaches, they claim, forced investigators and prosecutors to try to fit the evidence into cases against pre-determined targets rather than determining targets based on the evidence. The decision to delay in-country investigations, until after the confirmation of charges hearings, hampered the prosecution as support for the ICC among Kenyans began to erode from a concerted campaign of negative propaganda.
“OTP personnel were followed, putting them and anyone they contacted at risk; the witness interference orchestrated by the suspects/accused became even more pervasive; and the Government of Kenya became even less willing to co-operate, if not actively interfering with OTP operations and witness security,” the report adds.
Witness issues remain a sore point for the current prosecutor and her predecessor, as well as the experts and civil society. Bensouda argues that she investigated incidents of witness intimidation or corruption, and informed the judges in order to obtain additional protective measures for witnesses. Their investigations, she insists, resulted in warrants of arrest for Walter Osapiri Barasa, Paul Gicheru and Phillip Kipkoech Bett on charges of obstructing the course of justice in the Kenya cases.
Ocampo, piqued that the experts were not informed that during his tenure he requested warrants for the arrest of high profile individuals allegedly involved in witness interference in the Kenya cases, now accuses them of covering up those involved in witness tampering: “Instead of focusing on the Kenya’s authorities [in] interfering [with] witnesses, [the experts] challenged the policy to prosecute ‘those most responsible’ in accordance with the evidence collected.
The experts argue that the judges did not seem to be attuned to the proactive andreactive nature of effective witness protective measures. The latter may have been partly as a result of the prosecution’s failure to compellingly raise these issues with the judges.
The experts believe the prosecution delayed in seeking the judges’ assistance to compel cooperation, resulting in part from the contradictory approaches advocated persuasion. They conclude that the Kenya Government did not support the prosecution investigative activities, and instead either allowed interference with witnesses inside and outside the country or with OTP activities. It refused Requests for Assistance, thereby hampering the prosecution’s ability to access potential evidence, or imposed such conditions or access as to make access cumbersome and unworkable. The trial chamber made a finding of non-cooperation against Kenya in August 2015 and referred the matter to the Assembly of States Parties. It is yet to be deliberated upon.
Bensouda’s full statement: