Did Kenya get justice at the ICC?

A guilty verdict is not the only measure of justice; a properly investigated case is the least anyone could ask for.

Supporters of Kenyatta celebrate following the ICC ruling to drop charges [AFP]

After more than five years, it appears judges at the International Criminal Court had had enough. This week, they effectively pulled the plug on the case against Kenyan President Uhuru Kenyatta, who was accused of crimes against humanity during the country’s 2008 post-election violence. Two days later, Prosecutor Fatou Bensouda withdrew the charges, bringing to an end a case that had been floundering almost from the moment Kenyatta ascended to power.

The collapse of his case leaves only two defendants out of the original six that the Office of the Prosecutor had targeted in 2010 as bearing the highest responsibility for the deaths of over 1,100, displacement of over 660,000 as well as countless incidents of assault and sexual violence. Importantly, one of them is the country’s Deputy President William Ruto, whose case, alongside codefendant Joshua Arap Sang, is ongoing.

Undoubtedly, Kenyatta’s case was the pick of the lot; the first time a sitting head of state had been subjected to the authority of the court. This is thus a bitter-sweet moment for supporters of the ICC. On the one hand, the fact that the case even went ahead, established the principle that the most powerful people can be held to account. This was despite the best efforts of the Kenyatta administration, at both at the African Union and at the UN Security Council, to establish immunity for high-ranking government officials and to have the cases deferred.

Declining imperial powers

The fact that the withdrawal of the cases came at the prompting of the judges also does much to rescue the court from the accusations of being a “toy of declining imperial powers” and a tool for regime change in Africa. In the end, it was all about the evidence or lack thereof.

Mixed reaction in Kenya to ICC acquital

On the other hand, the withdrawal of charges demonstrated just how difficult it is to pursue a case against the same powerful people.

The rhetoric from the prosecution underwent a remarkable metamorphosis, from the heady confidence and, perhaps, arrogance of Bensouda’s predecessor, Luis Moreno-Ocampo, to the desperation of Bensouda as her case crumbled in the aftermath of Kenyatta’s election last year.

The prosecution has blamed many of its woes on the Kenyan government’s failure to cooperate on requests for evidence as well as what appeared to be a concerted campaign of intimidation resulting in an unprecedented rate of withdrawal and disappearance of witnesses. However, while acknowledging that the obstructive conduct of the government had compromised the prosecution’s ability to thoroughly investigate the charges and the court’s ability to discharge its mandate, the judges have squarely pointed the finger at the prosecutor.

And that has got to be the most disappointing finding for both the victims and supporters of the court. The judges attributed the collapse of the case to the “failure on the part of the prosecution to take appropriate steps to verify the credibility and reliability of evidence on which it intended to rely at trial”. As a result of this failure, at least one crucial witness was found to have been lying.

Reprehensible behaviour

The judges also decried the prosecution’s lackadaisical approach to following up on requests for evidence from a reluctant Kenyan government. In some respects, they found, it was “not reflective of a prosecutorial and investigative body effectively seeking to obtain the requested materials”.

This year alone, according to the UN’s Office for the Coordination of Humanitarian Affairs, more than 300 have been killed and over 220,000 displaced by inter-communal violence over resources and political representation.

Given the signature importance of this case, one would have hoped that the office of the prosecutor would have taken its job a lot more seriously than it appears to have done. And it is deeply disappointing that it did not. However, this does nothing to excuse the reprehensible behaviour of the Kenyan authorities.

The failed campaign at the AU and UN to get the cases dropped flew in the face of both the letter and spirit of the Kenyan constitution which specifically provides for the prosecution of the president. Furthermore, throughout the course of the cases, the government displayed more concern for the fate of its political leaders than for the principles of truth and justice or the interests of the survivors of the violence they were accused of perpetrating.

For all its talk of reconciling communities, it has actually done very little to ensure restitution for the victims or to prevent further conflict and displacement. The fact that there has been no serious local attempt to prosecute more than a handful of people for the 2008 violence has bred an atmosphere of impunity for the murder and displacement of Kenyans. This year alone, according to the UN’s Office for the Coordination of Humanitarian Affairs, more than 300 have been killed and over 220,000 displaced by inter-communal violence over resources and political representation.

Government’s attitude

The government’s attitude towards the remaining cases at the ICC offers little hope that it is ready to change its ways. “One down, two to go” the president declared on receiving the news, a message, according to one State House official, directed at Attorney General Githu Muigai, to whom the prosecutor’s requests for cooperation are addressed.

Foreign Minister Amina Mohammed declared that the government would “pursue the other dropping of other cases with the same energy and passion”. It seems that, despite the president’s assertion that the victims “will not be let down at home”, the interests of truth and justice will continue to play second fiddle to those of the accused.

To avoid another let down abroad, it is to be hoped that the prosecutor has been a lot more serious about discharging her duties in the Ruto and Sang cases. However, the fact that at least one witness has admitted on the stand to having lied to investigators, must ring alarm bells. And this when, with only two convictions in 12 years, the odds of a guilty verdict were slim at best.

The sad fact is all sides in this have failed the victims. If the ICC is to serve the interests of justice, it must learn lessons and institute reform. The Assembly of State Parties to the Rome Statute that established the court should also consider mechanisms for dealing with recalcitrant states. While a guilty verdict is not the measure of justice, a properly investigated and prosecuted case is the least anyone could ask for.

Patrick Gathara is a strategic communications consultant, writer, and award-winning political cartoonist based in Nairobi.