In a situation that exemplifies the strained relationship between Kenya and the International Criminal Court, the trial chamber in the Uhuru Kenyatta case is expected to make a formal ruling following an application by the prosecutor for a finding that Kenya has failed to cooperate with the court in relation to the cases facing the Kenyan president and his deputy William Ruto. Oral arguments were heard on Friday during a status conference before the trial court convened to hear the allegations of non-cooperation against Kenya.
Attorney-General Githu Muigai argued that co-operation with the court is subject to Kenyan law and that the Kenya government has no power to compel the production of financial records for Mr Kenyatta without an order issued by a competent Kenyan court. The AG argued that it was his duty to keep a distance from both the defence and the prosecution in the Kenyatta case, and that for this reason he had not discussed with the President his position regarding the requested information.
According to Mr Muigai, it was up to the ICC to make an application before the Kenyan national courts.
But the common legal representative for victims Fergal Gaynor strongly disagreed with the AG’s position on Kenyan law, arguing that Mr Muigai had a duty to assist the court, which he had neglected, and instead had chosen to defend the accused.
In the relevant filing, the prosecutor moved the court to make a formal finding that Kenya has failed to cooperate with the court and, therefore, refer the matter to the Assembly of States Parties. Under the Rome Statute, one of the fundamental obligations of states that are parties to the ICC is to cooperate with the court in all aspects of the trial of cases before the court.
According to the prosecutor, Kenya has failed to comply with her April 2012 request to produce financial and other records of Mr Kenyatta that are relevant to critical issues in this case and may shed light on the scope of the accused’s conduct, including the allegation that he financed the crimes with which he is charged.
The prosecutor alleges that for 19 months, her “repeated requests have been met with obfuscation and intransigence” and seeks a finding that Kenya has failed to comply with the court.
The AG, on behalf of the government, denied the allegation as to non-cooperation and asserted that the Kenya government has cooperated with the court at all material times and asserted bad faith on the part of the prosecutor for making these allegations, which are baseless. (READ: AG fights off Bensouda claims against Uhuru)
A DIFFICULT CASE
A period of sustained difficulties has characterised the Kenyan cases before the ICC since Mr Kenyatta and Mr Ruto assumed office as president and deputy president. Throughout last year, the Kenya government conducted a high-profile campaign, particularly at the African Union and also before the United Nations, against the trial of the two. As part of the campaign Kenya influenced the AU to convene an extraordinary summit at which it was resolved that no African head of state should be tried while in office.
Also, Kenya, with the support of the AU, renewed its request, which had previously been rejected, to the UN Security Council for a deferral of the trial of the cases for a year, as provided for under Article 16 of the Rome Statute.
While the Security Council rejected Kenya’s request a second time, the political pressure that Kenya had generated directly galvanised the international community behind a decision to change the Rules of Evidence and Procedure applicable to trials before the ICC so as to relax the requirement for personal presence for Mr Kenyatta and Mr Ruto during trial. Mr Ruto has since been allowed to stay away from the better part of the proceedings.
The change of rules was expected to pacify the AU and bring an end to Kenya’s many complaints against the ICC, including claims that the cases are politically motivated, and the result of a scheme to ensure regime change in Kenya; allegations that the court procured witnesses through bribery and false testimony; and that the international community has unreasonably stood in the way of Kenya’s attempts to deal with the post-election violence in its own way, unmindful of the fact that the prosecutions are a threat to the fragile peace that exists in the country.
The prosecutor has her own complaints against the Kenyan state, including that of insufficient cooperation, that Kenya has politicised the trials with an intent to defeat justice, and witness tampering.
Early in the year, the Kenyatta case was rocked by a request from the prosecutor for an indefinite suspension of the trial following the withdrawal of a key witness which rendered the case challenging to prosecute. As a result the Kenyatta case is viewed as weak and as susceptible to failure.
The Ruto case has also had its share of witness withdrawals, with the reported disappearance of a witness last week which also brings complications to the trial.
BACKCLASH AGAINST ICC
The request for a deferral of the Kenyatta case had led some to suggest that the Security Council should have given the one year deferral that Kenya had sought, since this in effect is what the prosecution also now wants. This would have mollified both Kenya and the AU, while affording the prosecutor the time she now craves to get ready, and would have undercut the ongoing backlash against the ICC.
While the cases before the ICC have run into considerable trouble lately, they still represent the best chance for the prosecution of alleged perpetrators of the post-election violence. Local justice mechanisms, which were recommended in the place of the ICC, failed to materialise, and whereas the government has maintained that it is committed to accountability, there are no meaningful national trials in place. If, as now looks increasingly possible, the ICC cases collapse, this will likely be viewed as a monumental tragedy for the victims of the post-election violence.
Last week, the Judicial Service Commission convened a meeting in Naivasha to discuss the possibility of national trials for the post-election violence. During the meeting the Director of Public Prosecutions, Keriako Tobiko, announced that his office had no evidence to sustain the trial of 4,000 cases of the post-election violence that he had been investigating.