Withdrawal of Kenyatta charges signals need for overhaul of ICC investigations
The Prosecution’s complaints about non-cooperation by the Kenyan authorities is true, but the lack of evidence points more to a failure of the previous investigative strategy of the Office of the Prosecutor. The evidence is out there, the question is why the OTP did not have it before charges were proffered.
BRUSSELS/ROME, 5 DECEMBER 2014
The Prosecutor of the International Criminal Court today withdrew the charges against Kenyan President Uhuru Kenyatta for crimes against humanity committed during the post‑election violence in Kenya in 2007-2008. The move followed an Appeals Chamber decision on 3 December directing the Prosecution either to withdraw charges or indicate its readiness to proceed to trial. Since March of this year, the Prosecution has been asking for adjournments in the Kenyatta case due to lack of evidence, complaining of non-cooperation by the Kenyan authorities in this respect. For now, the remaining case for crimes committed during the post‑election violence, against Kenyan Deputy President William Ruto and radio broadcaster Joshua Sang, continues.
Statement by Alison Smith, Legal Counsel of No Peace Without Justice:
“The best that can be said about what happened today is that the Prosecutor did not delay the inevitable – and that at least the withdrawal of charges is without prejudice to the possibility of bringing new charges against President Kenyatta at a later date, should the Prosecutor obtain sufficient evidence to do so. We’re clearly disappointed, having worked so closely with the Kenya National Commission on Human Rights on initial collection of evidence back in early 2008, but that is nothing compared with how the victims of crimes in this case must be feeling.
“The writing has been on the wall for some time, since the Prosecutor first announced several months ago that she lacked sufficient evidence to prove President Kenyatta’s responsibility beyond a reasonable doubt. While we respect – and agree with – the Prosecution’s complaints about non-cooperation by the Kenyan authorities, the lack of evidence points more to a failure of the previous investigative strategy of the Office of the Prosecutor. The evidence is out there, the question is why the OTP did not have it before charges were proffered.
“We believe the Prosecutor will need to take a long, hard look at the office’s investigative strategies, to avoid this kind of situation arising again. The ICC did not have investigators based in Kenya at a time when conditions allowed it: without a permanent presence, it is next to impossible to build the kind of trust and rapport with witnesses that is needed to sustain this kind of work from initial contact through to trial. No Peace Without Justice and the Nonviolent Radical Party, Transnational and Transparty welcome that the new Strategic Plan addresses this issue by stating that the Investigative Division will increase its field presence, ‘where possible’. The ICC and its State Parties must do everything in their power to ensure that it is possible for ICC investigators and other necessary ICC staff, such as outreach staff, to be based in the countries where investigations are taking place.
“Today’s withdrawal of charges also indicates that the previous strategy of focused investigations simply did not work. In complex situations like those in Kenya – and indeed all of those under investigation at the ICC – there is a need for proper, full and sustained investigations by experienced professionals. This is the only way to make sure that the Prosecution does have sufficient evidence to prove the criminal responsibility of whoever they bring charges against, in the absence of any justified defence. We urge States Parties to take this into account when they are considering the budget next week during the annual meeting of the Assembly of States Parties. Failing to support full investigations at a budgetary level means that corners will be cut, with the kind of devastating results we’ve seen today
“Above all, our thoughts are with the people of Kenya and with the victims of the crimes outlined in the charges against President Kenyatta. They are the ones who have to bear the brunt of today’s actions and the failures that led up to it. We hope that the Prosecutor will continue her investigations, so that one day, justice can be served.”
For further information, contact Alison Smith on [email][email protected] or +32-2-548 39 12 or Nicola Giovannini on [email][email protected] or +32-2-548-3915.