Mistrial brings into question main role of ICC in fighting impunity at the highest level

Saturday April 09 2016

Kenya's Deputy President William Ruto address the media at his office in Karen, Nairobi on April 8, 2016. He maintained his innocence three days after his crimes against humanity case at The Hague ended in a mistrial. He is flanked by his wife Rachel Ruto (right) and mother Sarah Cherono (left). PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

International and local human rights groups are united that the ruling of mistrial by the International Criminal Court in the case against Kenya’s Deputy President William Ruto is a blow to criminal justice in Africa.

The concern is that there is a common trend emerging at the ICC — that it is difficult to try those who are in power, meaning that the purpose of establishing the court to fight impunity at the highest level has failed.

Lawyers and human rights groups say that the ICC ruling has come at a wrong time when the East African region, for instance, is increasingly experiencing crimes against humanity as is the case in South Sudan, Burundi and Somalia.

Kenya Human Rights Commission executive director George Kegoro said that the termination of the case against Mr Ruto is a reward for the sustained political pressure that Kenya applied against the prosecution of the cases before the ICC.

“The assumptions that the ICC as a court of last resort that would be immune to political pressure, has been proved false,” said Mr Kegoro.

On Tuesday, the three-bench judges at ICC declared a mistrial in the case against Mr Ruto and radio journalist Joshua Sang, with two —Robert Fremr and Chile Eboe-Osuji — concurring that  the prosecutor’s evidence failed to prove the existence of a network alleged to have committed crimes in the Rift Valley. However, the third judge, Olga Herrera-Carbuccia, dissented.


READ: ICC drops case against Kenya's deputy president Ruto

The trial opened in September 2013, where Mr Ruto and Mr Sang were accused of crimes against humanity allegedly committed in the context of the 2007-2008 post-election violence in Kenya.

Despite the declaration of mistrial, the Chamber endorsed the prosecution’s position that the Kenyan case was severely undermined by witness interference and politicisation of the judicial process.

ICC prosecutor Fatou Bensouda alleges that witnesses were intimidated to withdraw and has issued arrest warrants for three Kenyans suspected of having been involved in the scheme.  

She said that witness interference had prevented the Judges from determining the guilt or innocence of the accused on the full merits of the case. 

“What is also troubling is that the onslaught against this case has — for now — denied the victims of the 2007-2008 election violence the justice they so rightly deserve. We are currently in the process of carefully assessing the Trial Chamber’s decision to determine the appropriate next steps,” said Ms Bensouda in a statement.

Michelle Kagari, Amnesty International’s deputy regional director for Africa, said while the court’s decision was a major setback for the victims, it is not the end of the road.

“In fact, victims should be able to seek justice for these crimes in the future as the accused have not been acquitted, and can be re-prosecuted either by the ICC or domestically,” said Ms Kagari.

However, both the deputy President and Mr Sang have maintained that they were innocent. The DP’s lawyer Karim Ahmad Khan has said that he will push for outright acquittal because the defence is not contented with the ruling of mistrial which gives room for Ms Bensouda to refile the case once she has new evidence.

Elizabeth Evenson, senior international justice counsel at Human Rights Watch told The EastAfrican that the ICC judges’ decision will likely be remembered for concerted plan to corrupt, intimidate and eliminate witnesses and that the remaining obligation for the Kenyan government is to obey the ICC arrest warrants for the three individuals on charges of witness tampering.

Kenya’s President Uhuru Kenyatta has, however, welcomed the ruling, arguing that “it reaffirms his strong conviction from the beginning about the innocence of my Deputy President.”

“From the start of this case, I have believed that it was ill-conceived and never grounded on the proper examination of our experience of 2007/2008 as a nation,” said President Kenyatta in a statement.

President Kenyatta has been leading the onslaught against the ICC at the African Union platform, where African leaders have passed the resolution that sitting head of states and high ranking government officials should be exempt from prosecution. The main focus has been the case against Mr Ruto and Sudanese president Omar al-Bashir.

President Kenyatta has found an ally in Yoweri Museveni of Uganda, who despite referring Joseph Kony of the Lord’s Resistance Army (LRA) to the ICC, has been a leading advocate of mass African withdrawal from the Rome Statute.

Gitobu Imanyara, a Nairobi lawyer said that given that the global powers such as US, Russia, Israel and China are yet to align their jurisdiction to the Rome Statute, African strongmen will always use their absence as evidence of double standards, the best example being Robert Mugabe of Zimbabwe.

The outcome of the Kenyan case now casts doubts on whether war crimes in Uganda, Burundi and South Sudan will be brought to account.