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
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.
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
and accused the experts of launching “unfounded personal attacks, including on
the current prosecutor” and making baseless challenges on the quality of
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.
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.
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.
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
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.
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
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.
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