With landmark Kenyatta case in disarray, ICC prosecutor has one last shot

In meetings at Kenya’s equivalent of the White House late in 2007 and early in 2008, Uhuru Kenyatta, now the president, helped plan the violence that swept the country after its disputed elections. He even transferred millions of dollars to buy weapons.

That is, at least, what two men who claimed to be at the meetings told prosecutors at the International Criminal Court (ICC) in statements that formed the meat of the court’s charges against Mr. Kenyatta for crimes against humanity.

The problem is that both witnesses now say they lied, so they will not testify. Nor are they alone: Several others key witnesses in the Kenyatta trial, the ICC's highest-profile trial ever, have withdrawn evidence. Some have reportedly disappeared.

Fatou Bensouda, the ICC’s chief prosecutor, says this is because of an "unprecedented intimidation” of witnesses in the Kenyatta case, and of what she claims are bribes and threats not to testify.

The loss of the testimony of those two men, Witnesses 4 and 12, significantly increases the likelihood that the Kenyatta case may soon collapse, say analysts who both support and oppose bringing Kenyatta to trial.

And that has serious implications for Kenya, they argue, and for what is often termed "international justice" -- in this instance, the relatively recent global effort to prosecute the world’s worst crimes.

“If this case fails, it will do terrible damage to the court’s deterrent effect,” says Fergal Gaynor, the Irish lawyer representing the victims of the post-election violence in Kenyatta’s trial.

“Look at what’s going on in South Sudan, in the Central African Republic – now is not the time for weakening of such deterrents. It will also send out a message that state obstruction of access to evidence is a viable strategy in closing down these cases."

Both Kenyatta and his current deputy president, William Ruto, were indicted by the ICC. Mr. Ruto is at his trial at the ICC facilities at The Hague. 

In December, Ms. Bensouda had to tell the court that she could no longer rely on Witness 12 in the Kenyatta case because he “admitted that he provided false evidence regarding the event at the heart of the prosecution’s case.” Witness 4 had already been excused.

Suddenly losing these testimonies means Bensouda had to concede she is not “currently in a position to present a case” that would prove Kenyatta’s alleged guilt. In other words, she has no case.

So why have the five crimes against humanity charges that Kenyatta faces not yet been withdrawn? Because Bensouda thinks she has one last shot.

For two years, she has been applying for access to Kenyatta’s bank accounts, which she says may provide evidence about who paid for parts of the post-election violence.

Bensouda knows that trying to crack open the accounts of the Kenyan president, one of Africa’s richest men, will be hard. Kenya’s attorney-general, Githu Muigai, has said that only a Kenyan court can grant such access, and few here believe any judge would be so bold as to order that.

But it would appear to be the prosecution’s last chance. Bensouda said recently that without access to Kenyatta’s financial records, and without other new evidence, “the prosecution will be required to withdraw the charges."

If that happens, it would be “a kind of re-traumatization” for the victims, says Mr. Gaynor. More than 1,100 people were killed and 300,000 forced to flee their homes during the violence, which followed Kenya's disputed 2007 elections.

“You have thousands upon thousands of people who were led to believe that they would receive some kind of justice, and now four years later, there will be nothing,” Gaynor tells the Monitor.

But for those in Kenya who do not support the trials – and they are many – the collapse of the case is the only fair outcome, and it is a cautionary one.

“I was one of many who grasped onto the ICC at the beginning as the only way to find justice,” says Ngunjiri Wambugu, a Kenyan political analyst now siding with Kenyatta but formerly opposed to him.

“The problem is we have come to see the shortcomings of the process. When -- not if -- the case collapses, it must be made clear that the reason is the prosecution’s incompetence, in order to force them to do a better job next time.”

Stephen Lamony, a senior adviser to the Coalition for the International Criminal Court in New York, says the changing narrative of the Kenya cases has lent each twist and turn perhaps too much importance.

“There will be a number of factors that feed into any decision by the judges to approve a withdrawal of the charges, but let us not forget that all courts acquit some cases, and convict others,” he says.

“There should be no difference with these cases. If there is not enough evidence, or the witnesses refuse to testify, there is little a court can do but throw the case out.”

The ICC’s judges are currently considering various applications in relation to delays to the Kenyatta case, and no date has yet been set for them to make their decisions, a court spokesman says.