Losing power no option for Uhuru, Ruto with ICC in sight

Each time charges have been dropped in the Kenyan cases at the International Criminal Court, the prosecution has been given an open cheque to revive them in future.

The threat of fresh prosecutions lurks beneath the celebrations on Saturday at Nakuru’s Afraha Stadium as President Uhuru Kenyatta leads the thanksgiving rally to mark the end of the cases against Deputy President William Ruto and co-accused Joshua arap Sang.

Ending Mr Ruto and Mr Sang’s crimes against humanity charges while leaving the door open for new charges in the future forces a coalition with Mr Kenyatta, whose own ICC case was dropped in December 2014. The prosecutor withdrew the case against Mr Kenyatta before it could enter trial after she failed to obtain records from the Kenya Government for seven months.

“In this situation, the most relevant documentary evidence regarding the post-election violence could only be found in Kenya,” said Prosecutor Fatou Bensouda at the time. A decision to refer Kenya to the Assembly of States Parties for non-cooperation is still pending in ICC Trial Chamber V(b).

She further claimed that several people who may have provided important evidence regarding Mr Kenyatta’s alleged actions had died, while others were too terrified to testify.

Earlier, in April 2013 the prosecutor withdrew the case against Mr Francis Muthaura, who had been charged alongside Mr Kenyatta with crimes against humanity from the post-election violence. Her reasons for withdrawing the charges included the fact that several people who may have provided important evidence regarding Mr Muthaura’s alleged actions had died, while others were too afraid to testify for the prosecution. 

Again, Kenya reportedly failed to provide the prosecutor with important evidence, and failed to facilitate her access to critical witnesses who may have shed light on the Muthaura case. One witness recanted a crucial part of his evidence, and admitted he had accepted bribes.

The laxity with which the summonses to appear at the ICC were enforced enabled the suspects in the Kenyan cases to fraternise, plan together and have access to victims of the post-election violence, who were in some instances also witnesses. Government stonewalling was evident as early as December 2010, when security officials expected to record statements buried the effort in a flurry of lawsuits at the High Court.

Despite the oft-repeated claim that the ICC is immune to political pressure, the Kenyan cases have proved just the opposite. It is remarkable that of all the 30 witnesses presented by the prosecution in the Ruto case, only the two experts testified in open court, without face or voice distortion.

On April 5, ICC judges acknowledged that the Ruto-Sang case had collapsed under the weight of extreme political pressure, witness tampering and an environment hostile to the prosecution.

The epidemic of prosecution witnesses withdrawing from the Kenyan cases struck immediately after the election of Mr Kenyatta and Mr Ruto as President and Deputy President, respectively.

BATTLE ROYALE

It appears that access to political power has had a significant effect on preventing the Kenya cases from proceeding to trial. Put another way, it is unclear if the cases against Mr Kenyatta and Mr Ruto would have panned out as they did were the pair not in power.

Power has also given Mr Kenyatta and Mr Ruto access to instruments of the State that have enabled them to launch battle royale against a revered international institution and exposed its soft underbelly, especially around investigations and witness protection. Kenya’s aggression in international forums at the African Union, the Assembly of States Parties and the United Nations Security Council has caused the ICC great distress.

Afraha Stadium, the venue of the political wedding that created the Jubilee alliance in 2012, is powerfully evocative of what the Uhuru-Ruto union has delivered.

The two leaders, then regarded as political lepers because of the freshly confirmed ICC charges against them, came together, captured power and appear to have triumphed over the ICC – even if momentarily. Mr Ruto and Mr Sang’s lawyers have been smarting from the judges’ decision not to grant them an outright acquittal, which would obviate the possibility of charges in the future, and it remains to be seen whether or not they will appeal.

As Mr Kenyatta and Mr Ruto face the prospect of re-investigation and prosecution – it seems only natural for them to come together as they did in 2012 to signal to their supporters the need to retain power, whatever the discomforts of their unity.

The focus on giving support to victims not only softens the two leaders’ public image, but also opens the door to disarming the ticking time bomb around the witness interference cases still pending at the ICC. Kenya is yet to extradite three suspects wanted for alleged witness tampering for at least two years.

So far, experience has shown that political power can ease conditions for anyone facing charges at the ICC, including occasional excusal from proceedings.

Going into the 2017 elections, the possibility of fresh investigations and prosecutions dramatically reduces the appetite for Mr Kenyatta and Mr Ruto to lose power. This poses the difficult question of whether or not there would be a peaceful handover of power in the unlikely event that the incumbents do not win re-election.

Mr Makokha is a programme adviser with Journalists for Justice