Key mistakes that doomed Ocampo, Bensouda case at the ICC

Almost from the beginning when the then Prosecutor Luis Moreno-Ocampo received the “Waki List” from the chief mediator on the Kenya post-election crisis, it started becoming clear the ICC was ill-equipped to manage the cases.

The Hague-based court was coming up against defendants with the resources to hire the best lawyers, and backed by State machinery with the capacity to obstruct investigations by giving the ICC the legal run-around.

The ICC has little in established investigative machinery of its own. It depends on the cooperation of member states to use their own police forces to carry out some of the investigations on the ground, collect evidence, and locate and produce witnesses.

Where the State is not willing to cooperate, then everything can stall. This is evident by the frequency with which Mr Ocampo and his successor, Ms Fatou Bensouda, cited the Kenya government in court for obstruction.

As the Kenyan cases progressed, it became obvious that the ICC had done very little in terms of sending out detectives to the killing fields to collect evidence and locate and take statements from witnesses.

Instead, it relied on preliminary work down by bodies such as the Kenya Human Rights Commission and the Kenya National Commission on Human Rights (KNCHR), whose reports also appear to have provided much of the evidence given to the Justice Philip Waki’s commission of inquiry into post-election violence.

There is no doubt that in the face of government lethargy or outright sabotage, key figures in the human rights movement — such as Mr Maina Kiai, Mr Omar Hassan Omar, now Senator for Mombasa, and Florence Simbiri Jaoko, then all with the statutory KNCHR and others such as Prof Makau Mutua, Ms Muthoni Wanyeki and Mr George Kegoro of the Civil Society Kenya Human Rights Commission — did a lot of work in bringing to the world’s attention the atrocities being carried out in Kenya.

INITIAL WORK

They sent out teams to the ground, who did much of the early work in documenting the killings and forced displacements, identifying perpetrators, interviewing victims and locating and sheltering witnesses.

Their early efforts were invaluable to the Waki Commission investigations that did not get running until August 2008 when much of the evidence was already destroyed.

The information gathered by the local human rights groups was also of immense value to the ICC teams that took up the cases after the Kenya government failed to establish an independent tribunal into the post-election violence.

That is why the UhuRuto presidential campaign was from the very beginning viscerally opposed to civil society.

It devoted an entire website to “outing” key individuals in the human rights movements.

It nick-named them “evil society” and tried to establish tenuous links to international development agencies. 

The UhuRuto team blamed civil society and presumed links to the Opposition and to the western lobby groups for the indictment by the ICC.

WRONG TEAM

However enthusiastic and committed the human rights activists were documenting the post-election violence, the teams they sent to the ground were not trained detectives and investigators.

There was also an inherent weakness in that some of the activists, reflexively anti-establishment, might have been more focused on nailing specific individuals rather than putting together evidence that could stand up in court.

That some of them also had political ambitions and links of their own could also have muddied the waters.

If it is true that the suspects were largely drawn from the initial groundwork by civil society group, then the cases were flawed from the beginning, especially as it seems that ICC did not collect its own fresh evidence.

The weaknesses in the case were evident from the very beginning in March 2010, but the pre-trial hearings presided over by Judge Ekaterina Trendafilova that committed the Ocampo Six to formal investigation gave the prosecution much leeway at that stage.

The case then was considered unique because it was the first time the ICC had sought to prosecute a case on its own volition without being referred by a member-state.

Mr Ocampo is a great, inventive showman: even though he did not have much of a case, he bristled with confidence and bluster.

In the view of some analysts, he constructed a brilliant legal gamble, which he thought would cure his lack of credible evidence.

TWO CAMPS

He divided his six suspects into two opposing cases, one for the Party of National Unity suspects — former Head of Public Service Francis Muthaura, former police boss Gen Hussein Ali and Mr Uhuru Kenyatta — and another made up of those allied to the Orange Democratic Movement Party — Mr William Ruto, Mr Henry Kosgey and radio presenter, Joshua arap Sang.

The two cases were presented to the same court, presided over by Judge Trandafilova.

Perhaps, Mr Ocampo saw that the PNU and ODM suspects would try to save themselves by implicating and providing evidence against each other, thereby getting the cases to, as it were, “cross-prosecute” themselves.

And he had good reason to hope for this: Both parties had already reported each other to the ICC.

What Mr Ocampo could not have foreseen was the speed with which the parties patched up their differences to present a united front against the ICC.

As the case progressed, a series of successive rulings by the Trial Court and various Appeal Chambers were seen, to the defence frustration, to have been accommodative to weaknesses in the prosecution case.

This leeway was apparently allowed because of Ms Bensouda’s complaints about lack of cooperation by the Kenya government in locating witnesses and securing  evidence.

She also claimed that a large number of the witnesses, who were steadily withdrawing, were succumbing to threats, intimidation and bribery.

This final verdict delivered on Tuesday freeing the last two suspects alluded to the spectre of “troubling incidence of witness interference and intolerable political meddling”. That itself hangs a shadow over Mr Sang and Mr Ruto because it emphasises that they were not declared “not guilty”, but rather were set free because the prosecution was unable to present evidence due to external factors.

The same might also apply to President Kenyatta who was discharged early last year after Ms Bensouda was given an ultimatum by the judges to either present proper evidence or withdraw the case.

NO EVIDENCE

The three other suspects, Mr Muthaura, Mr Kosgey, Gen Ali had been freed before being committed to trial, again for lack of evidence.

While all the cases collapsed because of withdrawal of witnesses, and it is likely that there was extraneous pressure, it might be germane that the prosecution did not make specific applications to try and pin down either the defence or key government figures in meddling with the case.

The ICC, already with a sorry record on convictions, no doubt suffers a bloody nose with collapse of the Kenyan cases.

This seems to make it a pale in comparison to other international tribunals such as those responsible for netting war crimes and genocide suspects in Rwanda, Argentina and the former Yugoslavia.