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ICC focus shifts as it drops rape, murder charges against Uhuru

Saturday December 06 2014
EAKenyatta

The withdrawal of charges of crimes against humanity facing Kenya’s President Uhuru Kenyatta at the International Criminal Court brings to an end the high-profile case that almost saw the African Union sever links with the court. AFP PHOTO | FILE

The withdrawal of charges of crimes against humanity facing Kenya’s President Uhuru Kenyatta at the International Criminal Court brings to an end the high-profile case that almost saw the African Union sever links with the court.

It also shifts focus to cases of other high profile Africans before the court, among them the country’s Deputy President William Ruto.

Mr Ruto and journalist Joshua Sang are facing charges of murder, persecution and forcible displacement of persons. The case is continuing, with the 27th witness testifying.

Another high profile case is that against Sudanese President Omar al-Bashir, who has been accused of war crimes, crimes against humanity and genocide in Darfur.

Warrants of arrest have been issued by the Pre-Trial Chamber against President Bashir and three other members of the Janjaweed militia. President Bashir has refused to co-operate with the court on the grounds that Sudan is not a signatory to the Rome Statute.

President Kenyatta had been charged in relation to the 2007-2008 post-election violence, in which at least 1,300 Kenyans were killed and over half a million were displaced. He had been charged as an indirect co-perpetrator, with five counts of crimes against humanity consisting of murder, deportation or forcible transfer, rape, persecution and other inhumane acts allegedly committed during the violence.

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The case against President Kenyatta began in December 2010, after the Kenyan Parliament failed to agree to constitute a local tribunal to try suspected perpetrators of the violence, and the matter was referred to the ICC.

President Kenyatta was charged alongside then commissioner of police Hussein Ali and then head of public service Francis Muthaura. In the second case, Mr Ruto was charged alongside politician Henry Kosgey and Mr Sang.

The Pre-Trial Chamber dropped the cases against Mr Ali and Mr Kosgey, while that against Mr Muthaura was dropped at a later date.

Following President Kenyatta’s election as Head of State, and Mr Ruto as Deputy President in April 2013, African leaders, under the African Union, embarked on a campaign to have the cases deferred, and to change the rules to provide for immunity for sitting heads of state, without success.

READ: Crossroads: Can AU save Uhuru from the ICC?

President Kenyatta thus became the first sitting Head of State to appear before the court when he attended the Conference hearing where the ICC Prosecutor Fatou Bensouda applied to have his case adjourned until the Kenya Government provided her with the evidence she sought.

READ: Uhuru at ICC: Damned if he goes, damned if he doesn’t

On Friday, Ms Bensouda dropped the charges after her application was rejected. She had repeatedly accused the Government of Kenya of refusal to co-operate with the Prosecution in providing the evidence required, which, she said, had made it impossible for her to take the case to trial.

READ: Bensouda withdraws ICC charges against Kenyatta
Ms Bensouda then applied to the court to adjourn the case, until such a time that the Government of Kenya provided the evidence she sought. On the defence side, President Kenyatta’s lawyers asked the court to terminate the case and acquit him.

On Wednesday, the court rejected both applications, and gave the prosecutor seven days to give a date to begin a trial or withdraw the charges.

In her submission to the court on Friday, she stated: “The evidence has not improved to such an extent that Mr Kenyatta’s alleged criminal responsibility can be proven beyond reasonable doubt. For this reason, and in light of the Trial Chamber’s rejection of the Prosecution’s request for an adjournment until the Government of Kenya complies with its co-operation obligations under the Rome Statute, the Prosecution withdraws its charges.” 

She added: “As noted by the Trial Chamber, this withdrawal is without prejudice to the possibility of bringing new charges against Mr Kenyatta at a later date, based on the same or similar factual circumstances, should the Prosecution obtain sufficient evidence to support such a course of action.”

The withdrawal of charges drew mixed reactions, with President Kenyatta and some Kenyan politicians saying the move had vindicated him, while the lawyer representing victims and civil society organisations expressed disappointment.

“I am excited by this news, which I have awaited ever since the day my name was announced to the world in connection with the case. I am also deeply relieved by this decision, which is overdue by six years,” President Kenyatta said in a statement.

The victims’ lawyer, Fergal Gaynor, said the quest for justice for the estimated 20,000 victims of the crimes in the Kenyatta case had been cruelly frustrated, both in Kenya and at the ICC. 

“It is regrettable that the victims have received almost nothing from the entire ICC process. While their government mounted an enormous effort to derail the few prosecutions in The Hague, it did next to nothing to hold perpetrators to account for the crimes committed,” he added.

There were no immediate reactions from African leaders. In Uganda, where President Yoweri Museveni has been a crusader against the ICC, news of the withdrawal of charges was announced by the master of ceremonies during a national thanksgiving ceremony at State House on Friday evening, but President Museveni did not refer to it in his speech.

Human Rights Watch said the withdrawal of the charges sets back efforts to end the country’s entrenched culture of impunity, and that the judges’ decision is seen as another setback for the ICC itself, which has brought only three cases to conclusion in the 12 years since its creation.

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