Report reveals why Kenya ICC cases were bungled

Poor leadership, decision making and staffing skills at the International Criminal Court were the key factors which led to the collapse of the case against the Kenyan suspects charged in The Hague over the 2007/2008 post-election violence, a new report shows. The report released by ICC prosecutor Fatou Bensouda on Tuesday noted that ICC was unable to give adequate and timely response to challenges facing the case agaisnt powerful political figures at the time, which influenced the overall outcome.

Ms Bensouda’s report followed the release of an earlier confidential report by a team of experts early last year dubbed: ICC OTP Kenya Cases: Review and Recommendations.

According to Ms Bensouda, the expert report which focused on the initial stages of the case, delved on the performance of OTP itself and the role it played in the case where charges against six Kenyan suspects including President Uhuru Kenyatta and his Deputy William Ruto were dropped.

“The experts decided that it would be most productive to focus primarily on the early years of the OTP’s handling of the Kenya situation, when “the die was cast”, so to speak, rather than the later trials.  In their report, they suggest that the outcome of the Kenya cases might simply have been a reflection of the inability of the ICC to respond adequately to the challenges presented by cases against powerful, high level accused,” the report reads.

The report was compiled by a team of experts which included Sierra Leone’s Residual Mechanism for the Special Court Prosecutor Ms Brenda J. Hollis, Mr Robert Reid a USA based independent consultant, Chief of Operations at the UN International Criminal Tribunal for the former Yugoslavia and the International Residual Mechanism for Criminal Tribunals (“IRMCT”), based in The Hague, The Netherlands; former Senior Trial Attorney and Senior Appeals Counsel at the UN International Criminal Tribunal for Rwanda, Ms Dior Fall, and an independent consultant based in Dakar, Senegal.

At least 30 former ICC staff members in all the three divisions of the OTP were interviewed in confidentiality and their views reflected in the reports recommendation.

Bensouda, however noted that her predecessor Mr Luis Moreno Ocampo was not among those who were interviewed but stated that the former prosecutor was issued with an advance courtesy notice as well as important documents prior to the release of the statement.

Apart from external factors such as witness tampering and interference and lack of adequate cooperation, which according to Bensouda, threw a spanner into the works regarding the Kenyan ICC case, she faulted Ocampo’s leadership style which based on the experts opinion was a huge hindrance.

“In the experts’ view, OTP leadership, primarily in the person of the first Prosecutor, was a major contributing factor to the problems encountered in the Kenya cases. In the opinion of the experts, the first Prosecutor’s leadership style discouraged candid, contrary assessments and viewpoints to the detriment of the cases, and some lower level leaders perpetuated this attitude,”

Decision-making was also mentioned as another issue which “worked to the detriment of Kenyan cases” as it was micro-managed.

According to the report, decision making was concentrated at the first Prosecutor and his Executive Committee (“ExCom”) primarily associated with Prosecutor 1, thus causing delays and hampering the process of decision making.

Moreover, it stated that Ocampo disregarded the fact that prosecutorial action,  based on law and facts, was the only way of enabling collateral consequences such as peace in Kenya as well as the relevance of ICC.

Lack of relevant skills among majority of employees in the OTP also made it mission impossible in dealing with rigorous investigations processes regarding Kenyan cases at the ICC.

“The experts were also concerned that too many staff positions were filled by individuals who did not have the requisite experience and skill sets to deal with complex investigations and prosecutions against high level suspects.

“While these individuals worked to the best of their abilities, these abilities were, in the views of the experts, not sufficient to cope with the complexities of the Kenya cases,”

Disrespect to the OTP office structure during the Kenyan ICC cases was also among issues highlighted by the report, where Jurisdiction, Complementarity and Cooperation Division (“JCCD”) seemed to exceed its mandate which apparently upset a section of the workforce.

“Exerting too much control over operational matters to the detriment of effective investigation and prosecution, and seemed to exercise “an outsized influence” over the first Prosecutor.

“Certain members of our staff, who were involved in the investigations, took issue with this characterization of JCCD’s role. The experts were focused on matters of management and approach, rather than the individual performance of line staff, whose good faith and dedication were never called,” said the report.

Ms Bensouda was however quick to point out that JCCD issue had been resolved saying “ It should be noted that whatever role JCCD may have played back then, its leadership and work practices have since been significantly changed. It functions very differently and successfully today.”

Other issues which left the ICC prosecutor with a bunch of weak Kenyan cases included: “relying on one or only a small number of insider witnesses - whose evidence could not be independently verified by the OTP – to establish essential elements of the case. 

“The continued cooperation of these insiders was constantly threatened by a pervasive witness interference campaign, exacerbated by the difficulties encountered with the witness protection program at that time,” the report read.

The was also the issue of credibility and vulnerability to witness interference, which posed a problem from the start and was not addressed in time, according to experts, 

“In their view, the OTP was dilatory in responding robustly to the potential for witness interference and the interference itself, delaying comprehensive Rome Statute article 70 investigations of alleged offences against the administration of justice until late in the process,”

The prosecutorial process also was hampered by deadlines set by the Ocampo whereby according to findings, the deadlines were based on considerations as opposed to sound prosecutorial practice.

The report came even as efforts to arrest three Kenyan suspected of witness interference are still underway after Bensouda issued a warrant of arrest on November 26, 2019.

“Warrants are outstanding for the arrest of three suspects accused of offences against the administration of justice, contrary to article 70 of the Rome Statute, based on allegations of witness interference, and the matter of the arrest and surrender of these suspects to the ICC is still before the courts in Kenya,” the report reads.