Two victims’ lawyers in Kenyatta case in line to become next ICC prosecutor

Two lawyers who represented victims in the case against Kenyan President Uhuru Muigai Kenyatta at the International Criminal Court (ICC) have made the shortlist of four candidates in line to become the next ICC prosecutor.

Morris A. Anyah and Fergal Gaynor were named in the report released on Tuesday by the committee ICC members set up to shortlist candidates for prosecutor. The other candidates on the shortlist are Ugandan High Court Judge Susan Okalany and Canadian prosecutor Richard Roy.

Anyah, a Nigerian lawyer with American dual nationality, represented the victims during the pre-trial proceedings of the case against Kenyatta. Gaynor, an Irish lawyer, represented the victims at the trial stage. Anyah currently runs his own law firm in Chicago in the United States. Gaynor is currently the Reserve International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia.

The Kenyatta case did not go to trial because in December 2014 ICC Prosecutor Fatou Bensouda withdrew the charges against him for lack of evidence. Kenyatta had been charged at the ICC for his alleged role in the violence that erupted after the disputed December 2007 presidential election in Kenya. Kenyatta did not run for president in that election but he supported the incumbent at the time, Mwai Kibaki.

In their report on Tuesday, the committee said they were confident that Anyah, Gaynor, Okalany and Roy met, “the formal eligibility criteria of the Rome Statute,” the ICC’s founding law, and they also had “the professional experience and expertise and the necessary personal qualities to perform the role of Prosecutor.”

“All four candidates on the shortlist impressed the Committee, supported by detailed advice and assessments from the Panel of Experts, with their genuine interest in justice and the rule of law, the ICC and the cause of international criminal accountability – without fear or favour nor desire for personal advancement, beyond the wish to seek out new challenges in public service,” the committee said in its report.

The panel of experts the committee referred to was a group of lawyers appointed in June last year to provide technical support for the committee. Career diplomats, some with a legal background, were appointed to the committee, also in June last year. The mandates of both the committee, formerly called the Committee on the Election of the Prosecutor, and the panel of experts, ended with the submission of Tuesday’s report.

Bensouda’s term as prosecutor ends next year in June. The process to recruit her replacement began a year ago when the committee and the panel of experts were appointed to advertise the job of prosecutor, receive applications, assess them and interview candidates to reach a shortlist. Their decision-making was by consensus as will be the election of a new prosecutor by ICC members in December during their annual meeting, formally known as the Assembly of State Parties. The President of the Assembly of State Parties will lead the process of seeking a consensus candidate between now and December.

In their report released on Tuesday, the committee said they kept past criticisms of the ICC in mind when selecting the candidates to make the shortlist.

“In light of the current challenges and ongoing calls for reform of the Court, its business and its management, the Committee also closely observed the candidates personal qualities, ideas and demeanour, in questions aimed inter alia at disclosing their vision of the change management leadership that State Parties have indicated the Court will require going forward,” said the committee.

Over the years, in the course of proceedings at the ICC, and outside the bubble that can be the ICC, criticisms have been raised about the quality of investigations and prosecutions the Office of the Prosecutor (OTP) has undertaken. Some of those criticisms have been harsh and some of them have been self-serving.

But external experts Bensouda commissioned raised similar criticisms in their report on the early case file in the Kenyatta case and the related one of Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang. Ruto and Sang were put on trial but the proceedings against them were terminated at the end of the prosecution’s case. The majority judges terminated the case in April 2016 after they determined it had deteriorated so much due to witness interference that it was difficult to establish the truth.

The external experts Bensouda commissioned observed in their report that the different units in the OTP did not work as a team. They also observed that the then Prosecutor Luis Moreno Ocampo discouraged people expressing views that were different from his own on how to proceed with cases. Moreno Ocampo denied the allegations against him in response to the executive summary of the experts’ report. The experts submitted their report in February 2018 after talking to 30 serving and former OTP staff and reviewing the early case file of the Kenya cases. Their report has not been made public but its executive summary was publicly released in November 2019.

In their report released on Tuesday, the committee acknowledged that the managerial experience of Anyah, Gaynor and Okalany was limited to running small teams. The committee also acknowledged that Okalany and Roy’s experience was mainly in their domestic legal systems.

“There is no such thing as a “perfect” candidate, and a curriculum vitae tells only a part of the story. All four candidates recommended to the State Parties for further consideration have areas in which their actual, recorded experience may not be as extensive as considered desirable.

“For this reason, the Committee chose to conduct competency-based interviews, with a view to allowing candidates to show how they would demonstrate certain behaviours/skills, as prosecutors, as managers of the OTP and within the strategic context in which the ICC is situated,” the committee said.

The committee reached a decision to shortlist Anyah, Gaynor, Okalany and Roy after interviewing a longlist of 14 candidates the panel of experts recommended. The panel of experts made their recommendation after sifting through the applications of 89 candidates. The committee received 144 applications but only 89 of those candidates submitted supporting documentation to their applications. The committee has kept confidential the names of the 85 other candidates who did not make it to the shortlist.

The committee said that as they interviewed the 14 candidates who made it to the longlist the ICC’s Security and Safety Section vetted them. The committee said the 14 consented to the vetting, which included checks of publicly sourced information such as social media and security and criminal record checks.

The committee described the vetting process as “unprecedented” in the process of choosing candidates for ICC prosecutor. They said such a process is normally applied to people nominated to non-elected positions at the ICC and the vetting process was “not foreseen” in their terms of reference.

“The Committee is aware that a vetting process set in motion ex post facto and with limited scope, cannot lay claim to comprehensiveness, nor will it offer all desirable guarantees,” the report added.

“That said, the vetting process contributed to the Committee’s ability to present to the Assembly a strong and credible list of the most highly qualified candidates, whose candidacy are likely to withstand the reputational scrutiny that the subsequent public process will bring with it,” said the committee.

Sabine Nölke was Canada’s ambassador to The Netherlands when she was appointed to the committee and made its chair. She is currently Canada’s Chargée d’Affaires in Ireland. Nölke’s vice-chair was Andreas Mavroyiannis, Cyprus’ Permanent Representative to the United Nations. The other members of the committee were Marcin Czepelak, Poland’s ambassador to The Netherlands; Lamin Faati, Gambia’s Deputy Permanent Representative to the United Nations; and Mario Oyarzábal, the Legal Adviser to Argentina’s Foreign Ministry.

The panel of experts was chaired by Charles C. Jalloh, a Sierra Leonean who is professor of law at Florida International University. Other members of the panel were Francisco Cox, a Chilean lawyer who represents a group of victims in the ICC trial of Dominic Ongwen, a former commander of the Lord’s Resistance Army; Aurélia Devos, a French prosecutor; Motoo Noguchi, who is Japan’s ambassador for international judicial cooperation; and Anna Richterova, a Czech prosecutor.