With few willing to testify against Kenya's president and authorities failing to cooperate, any verdict on crimes against humanity charges will be compromised, says Simon Allison.
Lawyers for the Kenyan president, Uhuru Kenyatta, have asked the International criminal court to withdraw crimes against humanity charges with lead counsel, Stephen Kay, telling a hearing in The Hague that "there is no evidence" against his client.
This is not the first time. In February Kenyatta’s team made a similar argument, claiming that the prosecution case had "collapsed". But the court didn’t buy it, and gave the prosecution a few more months to gather evidence, in particular all-important financial records.
This time, however, perhaps the court should listen. In a strange irony, justice might just be best served by withdrawing the charges against Kenyatta – for now.
Here’s the problem: the prosecution’s case really is weak. This is not a reflection of the guilt or otherwise of Kenyatta, who was formally charged in 2012 in relation to his alleged role in Kenya’s post-election violence of 2007-8; nor is it necessarily a reflection of shoddy work from the ICC. Rather, it is a symptom of the extraordinary difficulties faced by investigators when it comes to collecting crucial evidence, and keeping hold of witnesses.
The lack of international pressure on Kenyatta to facilitate the ICC’s investigation has complicated matters
The first difficulty is the obstinate lack of effective cooperation from the Kenyan government in handing over records and documents.
In particular, prosecutors have been repeatedly denied access to Kenyatta’s banking records, which they suspect will prove that the he made payments to perpetrators of the violence.
This is hardly a surprise, of course, given that Kenyatta is now in charge of the government and there is no incentive for cooperation.
Particularly unhelpful in this context is the relentless public and diplomatic campaign waged by Kenya against the ICC. As Human Rights Watch notes: "The ICC depends on the public support of its member countries and other interested parties to create a climate conducive to its work. Efforts by Kenyan government officials to lobby other governments to support referral elsewhere or termination of the ICC’s cases have the opposite effect."
The second major concern for the prosecution is the high drop-out rate of witnesses testifying against Kenyatta, and their struggles to find new witnesses. This is thanks to "unprecedented intimidation", according to ICC chief prosecutor Fatou Bensouda.
Kenyan human rights lawyers described how potential witnesses have been cajoled and bullied into withholding their testimony.
These tactics allegedly include paying off witnesses; threatening the families of witnesses who have accepted witness protection; publicising the identity of witnesses; and violence against witnesses, including mysterious disappearances.
While there is no proof that Kenyatta or his allies are responsible for what appears to be a concerted witness intimidation programme, the Kenyan president is undeniably its principal beneficiary.
The verdict, whatever it is, will be compromised
Stella Ndirangu, programme manager at the Kenyan chapter of the International Commission of Jurists, also points out that the nature of the alleged crimes makes it easier – for prosecutors and potential intimidators alike – to identify potential witnesses.
"Kenyatta's case has suffered from witness withdrawal, intimidation and disappearances because of the nature of the environment [in which] the crimes he is accused of happened," she said.
The prosecution claims Kenyatta and a small group of accomplices planned and executed violent acts. There is, in other words, a very small potential witness pool.
This is not as much of a problem in the trials of the deputy president, William Ruto, and co-accused Joshua Arap Sang. The planning of their alleged crimes was longer and more chaotic, meaning that there are significantly more potential witnesses. In their situation, it has been easier to find replacement witnesses and more difficult to identify in advance who the witnesses may be.
Between the lack of cooperation and the witness intimidation, the ICC’s prosecution team is struggling to put together a convincing case against Kenyatta. Already, the court has delayed the start of the trial until 7 October to give investigators more time, but time is unlikely to solve these particular problems, especially while the accused remains head of state.
Complicating matters further is the almost complete lack of international pressure on Kenyatta to facilitate the court’s investigation.
Within Africa, Kenyan diplomats have done an excellent job of convincing the rest of the continent that the ICC should not be trusted. These efforts culminated last year in the extraordinary African Union Summit where African leaders demanded the suspension of the trials against Kenyatta and Ruto.
Internationally, western countries who may be able to influence Kenya’s behaviour – in particular the UK and the US – are deterred by Kenya’s importance in the fight against Islamist extremism in east Africa. They fear that by openly criticising the Kenyan government, they may lose a valuable ally in the war on terror.
What this all adds up to is a very slim chance of a successful prosecution against Kenyatta. Rather the verdict, whatever it is, will be compromised. There is a much greater chance for a fair trial if witnesses can testify without fear of reprisal, and with full cooperation from the relevant authorities.
This is why the ICC’s prosecutors should consider not opposing the request from Kenyatta’s lawyers demanding that the charges against him be dropped. If the case continues, and Kenyatta is formally acquitted, he can never again be tried on these particular charges. If, however, the charges are dropped, then prosecutors will be able to resuscitate the trial if and when they are in a position to mount a more solid case against him.
This course of action may be a tough pill to swallow for the ICC, which has invested so much time, money and political capital into his prosecution. Ultimately, however, it might be the best way to keep any hope of real justice alive.