Last week, in a two to one majority decision, judges of the ICC’s Trial Chamber V (a) decided to drop the cases against Kenya’s deputy president William Ruto and former journalist Joshua Arap Sang. Ruto and Sang were charged with crimes against humanity, in the aftermath of the late 2007, early 2008 post-electoral violence in that country that left 1,200 dead and over half a million people displaced.
It is notable that the Chamber declined to acquit the suspects, ruling instead to vacate the charges because the prosecution case had broken down and the evidence available was too weak to convict them if the trial had continued. It’s worth reading the dissenting opinion of Judge Olga Herrera Carbuccia. The presiding judge, Chile Eboe-Osuji, declared a mistrial, citing “serious tainting of the trial process by way of witness interference and political intimidation of witnesses.” Judge Robert Fremr agreed that:
There was a disturbing level of interference with witnesses, as well as inappropriate attempts at the political level to meddle with the trial and to affect its outcome.
But in Kenya, the details of this ruling are lost amidst the jubilation and celebrations that followed this announcement. The mood here is overwhelmingly that Kenya won, and the ICC lost. Lost in this process, is also the fact that Kenya was never in the dock at the ICC. Six individuals were. Six Kenyan citizens, not Kenya as a state or a nation.
Basically, over the past five years, we went from the “Ocampo Six” to the “Ocampo Zero” (in reference to Luis Moreno Ocampo, the first chief prosecutor of the ICC, and the six individuals he targeted for crimes against humanity). Six individuals were charged with crimes against humanity in relation to the post electoral violence (PEV) of 2007-2008, and in the end, only two of them stood trial. Now the charges against those men have been vacated. This essentially forecloses on any hope for accountability, whether at the ICC or before Kenyan domestic courts.
Upon hearing that he was off the hook, Ruto reacted with a “Hallelujah! God is great! Our God is Faithful,” before adding “My wife snuck out at midnight, to pray for me.” Thousands of supporters of the ruling Jubilee Coalition poured onto the streets to celebrate the final whistle on the Kenyan ICC cases. Joshua Sang has already proclaimed his political ambitions. President Kenyatta has called for a national prayer and thanksgiving rally at the stadium in Nakuru on April 16.
But one would be foolish to believe that this outcome was just delivered by the power of prayers. In fact, over the last few years, the Kenyan state and its leaders have relentlessly obstructed the work of the ICC and undermined the prosecution case. The Kenyan administration has refused to hand documents that the Office of The Prosecutor had said were important to prove the culpability of President Kenyatta. Witnesses have been intimidated, disappeared, and have refused to testify. When forced to appear before the Court, witnesses have recanted their earlier testimonies, saying that they were coached by ICC investigators.
The Kenyan state has also deployed an unprecedented diplomatic offensive against the ICC, enrolling both the African Union and individual African states. But above all, Kenyatta, Ruto and the Kenyan state had won the narrative battle on the ground, here in Kenya. By joining forces, and running on an anti-ICC platform, not only were they able to snatch victory at the 2013 elections, but also convinced the majority of Kenyans, even some victims of the post electoral violence, that the ICC was the enemy.
Over the past three months, I have been conducting interviews across Kenya, about the ICC. At the Nakuru Pipeline IDP camp, Daniel – not his real name – told me, “My own son was pierced by an arrow by one of his classmates. So saying Uhuru and Ruto were the perpetrators is sheer nonsense.” Another man, Samuel said:
An old man like Francis Muthaura, a man of seventy something years, being charged with rape, displacing people? Don’t you think that that was done to irritate people? Charging him with rape and killing people was aimed at annoying the community. That was a way of making the country go into war.
Not everyone needs to understand what command responsibility and being charged as an indirect co-perpetrator means in international law jargon, but if the victims themselves don’t get why is the ICC involved, there is a problem.
Speaking of the ICC proceedings, Daniel added:
All we hear is Witness 1, Witness 5, Witness 19 …What’s that? I asked Bensouda in person when she was here, why they hid the witnesses’ identities. If I was asked to give a statement, I would identify myself … and identify the perpetrators.
In any case, this is a good time for the ICC’s Office of The Prosecutor (known by its initials, OTP) to get into some serious soul searching. From the start, it was clear that Ocampo had engaged in some political calculation and a balancing act, when naming the six suspects. It is not clear it was the actual evidence that lead to the naming of those specific six individuals.
Moreover, had the OTP built its case on material evidence rather than relying mostly on witness testimonies, it would have made the political interference and witness intimidation less lethal to the prosecution case. I was sitting in the court room in The Hague almost two years ago when Judge Eboe-Osuji, visibly annoyed, chastised the prosecution and told them “you need to get your ducks in a row, we expect to see your witnesses lined up here.”
As for Kenya, it is clear now that the page has been turned, the books of accountability for the 2007-2008 PEV have been closed. At the domestic level, virtually no one has been prosecuted for their role in the violence that had engulfed the country. The establishment of the International Crimes division within the Kenyan judiciary did not happen and probably won’t. Even if that court sees the light of the day, it will not address the 2007-2008 violence.
Even more worrisome, the transitional justice process is stalled. Three years after the Truth, Reconciliation, and Justice Commission (TRJC) submitted its 2,000-page report, the Parliament has still not read and debated it, let alone implement its recommendations. Maybe Uhuru Kenyatta and William Ruto are counting on the power of their prayers to deliver peace in Kenya for the upcoming next year’s elections.