Why headache may linger for Uhuru despite win

The prosecutor of the International Criminal Court has withdrawn the charges of crimes against humanity facing President Uhuru Kenyatta, ending one of the world’s most high-profile legal battle in recent years.

The withdrawal of the charges was widely expected following a decision by the trial chamber in the case against him, on two rival applications, one by the prosecutor and the other by the defence, in the case. The prosecutor had applied for an indefinite postponement of the start of the trial against Mr Kenyatta, an application that was rejected, while the defence had applied for the acquittal of the president by the court, which was also rejected.

Instead, the court gave the prosecution a week in which to either begin the prosecution against Mr Kenyatta or withdraw the case. The prosecutor has, therefore, chosen to exercise the second of the two options given by the court.

In its notice filed in court, the prosecutor indicated that the evidence in her possession had not improved to an extent that President Kenyatta’s alleged criminal responsibility could be proved beyond reasonable doubt.

Mr Kenyatta became the first serving president in history to appear as an accused person in a criminal court when he was required to appear for the last status conference of the court in October, the one that has led to the decision to drop the charges against him.

The status conference had been convened by the trial chamber to assist it to resolve a dispute between the Kenyan Government and the Office of the Prosecutor regarding the cooperation of the latter with the court in relation to the charges against Mr Kenyatta.

The prosecutor’s application had sought a finding that the Kenyan state had failed in the obligation to cooperate with the court, as required by the Rome Statute, and seeking an indefinite adjournment of the case until Kenya complied.

Such a finding would have triggered a reference against Kenya to the Assembly of State Parties as provided for in the Rome Statute, which stipulates that “where a State Party fails to comply with a request to cooperate with the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”
The prosecutor’s application was based on claims that Kenya had failed to furnish her office with telephone, land and bank records of Mr Kenyatta.

After some counter-accusation between the prosecutor and Kenya’s Attorney-General, representing the Kenyan state, the court eventually entered into a process of supervising compliance by Kenya, with the prosecution’s requests.

Three status conferences, the last one on the day before that of the President, took place during which the court sought to assess progress in compliance with the requests for cooperation.

WITHIN THE LIMITS

Eventually the prosecution declared that it had reached a deadlock in its endeavours on cooperation from the Kenyan government—claims the AG disputed. Prof Githu Muigai asserted that he had given all the information within the limits of the Kenyan law.

The Kenyatta defence team made their own application requesting “the Chamber to deny the Prosecution’s request for a further adjournment, terminate the proceedings, and issue a final determination of the charges against Mr Kenyatta.” If this request was granted, it would have amounted to an acquittal with no possibility of future proceedings.

While the latest development, which has forced the prosecutor to withdraw the case against Mr Kenyatta, is a significant setback for her, it could have been worse for her if the court had granted the application by the defence for an acquittal.

In effect, the court’s decision rejecting the application by the defence for an acquittal, while also rejecting that by the prosecutor for an indefinite adjournment of the case until Kenya had cooperated with the court, is Solomonic justice.

The effect of a withdrawal by the prosecutor, as opposed to an acquittal by the court, is that the prosecutor can still bring a case against the President in future. Indeed, in her filing before the court, the prosecutor indicated that “this withdrawal is without prejudice to the possibility of bringing new charges against Mr Kenyatta at a later date, based on the same or similar factual circumstances, should [the Prosecution] obtain sufficient evidence to support such a course of action”.

For Mr Kenyatta, although dropping of the charges against him is a decisive victory, it still leaves him with two problems.

First, the manner in which the case has ended does not amount to “clearing my name” as he put it during the presidential debate that preceded his election to office last year. The charges against him have been withdrawn in a manner that does not give him a chance to claim the moral high ground he would so much have craved.

Second, the prosecutor has indicated that if new evidence surfaces, she can bring fresh charges against Mr Kenyatta.

From this perspective, the manner in which the trial has ended does not give the President the kind of closure he would have wanted.

If, as it has been argued, there might be a softening of the Jubilee rhetoric towards the ICC if the case against Mr Kenyatta was terminated, the terms of its termination do not easily make that possible.

MURMURS OF UNFAIRNESS

For the post-election violence victims, withdrawal of the charges against Mr Kenyatta means that after seven years of waiting, there is still no closure for them and no justice.

The cases before the ICC were organised in terms of the nature of the violence, with the first case against William Ruto, Joshua Sang and Henry Kosgei, being for crimes committed on the opposition ODM side, while the second case, against Kenyatta, Francis Muthaura, and Hussein Ali was for crimes committed on the ruling party side. The termination of the case against Kenyatta brings an end to all the cases on the government side while those on the opposition side are still alive.

The balanced approach to the ICC prosecution has been upset by the termination of the Kenyatta case, and murmurs of unfairness may soon be heard on the other side.