Uhuru Kenyatta

Uhuru Kenyatta at an ICC status conference on 8 October 2014. ©ICC-CPI
The ICC trial of Kenyan politician Uhuru Kenyatta ended in 2015 due to a lack of evidence and alleged witness-tampering. He was charged with crimes against humanity during Kenyan post-election violence in 2007-8.
Status
Concluded
Regions: 
Africa
Kenyan politician Uhuru Kenyatta was charged by the ICC with orchestrating crimes against humanity in 2007-08 during violence that followed disputed presidential elections in 2007. He appeared voluntarily before the ICC after being issued with a summons to appear in March 2011. Following the opening of the ICC case, Kenyatta made a successful bid for the Kenyan presidency with another ICC suspect from across the political divide, William Ruto. As the trial was set to open in December 2014 after several postponements, the charges were withdrawn for lack of evidence due to the withdrawal of key prosecution witnesses. The ICC prosecutor alleges widespread witness-tampering in the case and that the Kenyan government failed to cooperate with or provide key evidence. The case may reopen should further evidence come to light.

Kenya's campaign to undermine ICC independence

After Kenyatta became the first sitting head-of-state to appear before an international criminal court and ahead of the trial opening, Kenya undertook an ultimately unsuccessful political and diplomatic campaign to have the ICC case dropped.

Kenya did succeed in securing changes to the ICC’s rules to allow those mandated to fulfil "extraordinary public duties at the highest national level" to request excusal from presence at trial to perform such duties, with civil society strongly opposed to this and other attempts to undermine the ICC’s independence.

Kenyan and international civil society strongly opposed Kenya's campaign to undermine the ICC’s independence.

 

Background

2007-08 post-election violence in Kenya

In 2007, incumbent President Mwai Kibaki of the Party of National Unity (PNU) was declared the winner in the closely-contested Kenyan presidential race against Raila Odinga. Odinga and his opposition party, the Orange Democratic Movement (ODM), refused to recognize the results and widespread violence ensued, causing thousands of deaths, the displacement of over half a million people, as well as hundreds of victims of sexual assault. 

Who is Uhuru Kenyatta?

Uhuru Kenyatta is the son of Jomo Kenyatta, Kenya's independence leader and first president. In March 2013, Kenyatta was elected president of Kenya. Before this, Kenyatta held various positions within the Kenyan government, including minister of finance and deputy prime minister. Kenyatta was a prominent member of the PNU political party at the time of the 2007-08 post-election violence (PEV).  

Charges

Kenyatta charged for alleged common plan against ODM supporters

The ICC prosecutor suspected Kenyatta was responsible for planning, financing, and coordinating violence against ODM supporters as part of a common plan along with two others: Francis Muthaura, a former civil service chief, and Muhammed Hussein Ali, a former police chief. 

Kenyatta was charged with five counts of crimes against humanity: Murder, deportation or forcible transfer, rape, persecution, and other inhumane acts. 
The prosecution alleged that Kenyatta, as an indirect co-perpetrator, orchestrated cooperation between the PNU and Mungiki criminal organisation that carried out attacks on ODM supporters during the PEV. The alleged common plan was carried out around areas of Nakuru, Naivasha, Kibera, and Kisumu from 30 December 2007 to 16 January 2008. 

Mixed outcomes in confirmation of charges

In January 2012, Pre-Trial Chamber (PTC) II confirmed the charges against Kenyatta and moved the case to trial. On 8 October 2014, Kenyatta became the first sitting head-of-state to appear before the ICC during a pre-trial hearing. 

Charges against Muthaura were also confirmed but were eventually withdrawn before the case got to trial after a critical witness recanted his prior statements. The prosecutor alleged the Kenyan government had provided only limited cooperation and had failed to assist in uncovering crucial evidence against Muthaura.

Judges declined to confirm charges against Ali for lack of evidence.
 

Challenges

Prosecution withdraws charges due to lack of evidence, alleges witness-tampering

In December 2014, the ICC prosecutor withdrew the charges against Kenyatta after several delays to the start of trial. While the evidence available to the prosecution was sufficient to confirm charges, the ICC prosecutor concluded it was inadequate for securing a conviction at trial. Several prosecution witnesses were reportedly killed, disappeared or withdrew from the case, or recanted their testimony. The defense, meanwhile, argued the witnesses were coached and given financial incentives to testify. 
The prosecution further claimed the Kenyan government was non-cooperative in providing potentially key evidence it had requested (see below for more on cooperation). Trial Chamber V(b) upheld the prosecution’s decision to withdraw charges, citing the right of the accused to a fair and expeditious trial.

ICC judges reject challenges to admissibility and jurisdiction of case

In March 2011, Kenya challenged the admissibility of the ICC case against Kenyatta (and Muthaura and Ali). It claimed that the country was undergoing a comprehensive legal and judicial reform and intended to investigate and prosecute the cases domestically. In rejecting the challenge, PTC-II found there were no such ongoing domestic proceedings with respect to the three ICC suspects. The Appeals Chamber confirmed this decision in August 2011.

PTC-II also rejected a challenge to the Court’s jurisdiction over the case by the defense for Kenyatta and Ali, dismissing the argument that the level of organization and structure within which the crimes were allegedly committed did not reach the requisite level for crimes against humanity under the Rome Statute.

Judges decide Kenyatta must be present at trial as ASP adopts rule change on heads-of-state

On 26 November 2013, a majority of Trial Chamber V(b) ruled that as a general rule Kenyatta must be present at trial, and that requests for excusal would be considered on a case-by-case basis. 

The ruling reconsidered the Trial Chamber’s own decision from October 2013, which excused Kenyatta from continuous presence at trial to allow him to perform his duties as president of Kenya. The prosecution had asked the Chamber to reconsider the excusal after the Appeals Chamber had decided, in the context of the Ruto/Sang case, that absence from trial is only permissible under exceptional circumstances. 
The Trial Chamber’s ruling came in the middle of the 12th session of the ICC’s governing body - the Assembly of States Parties (ASP) – during which states adopted a Kenyan proposal to change the Court’s rules to allow those mandated to fulfil "extraordinary public duties at the highest national level" to request excusal from presence at trial.

In October 2013, Trial Chamber V(b) rejected Kenyatta’s requests for authorization to participate at trial via video link.

Civil society defends ICC independence and no immunity under Rome Statute

While the Rome Statute provisions excluding immunity based on official capacity remained untouched during the 12th ASP session, civil society expressed grave concern at the political campaign that led to the new rules on the appearance of sitting heads-of-state at trial, noting it risked undermining the ICC’s independence. In the run-up to 13th ASP, civil society also strongly opposed a proposal by the Kenyan government to amend the Rome Statute to allow immunity for heads-of-state and high government officials. 

Read more on Kenya’s anti-ICC campaign - See Kenya country page

Judges decide hearings to take place in The Hague

On 15 July 2013, in the context of the Ruto/Sang trial, the plenary of ICC judges rejected a joint defense request to hold the trial in Kenya or Tanzania. For such a move to be adopted, at least two-thirds of the 18 judges needed to vote in favor of it. The judges stated that they took into consideration the security and cost of holding proceedings outside The Hague, the potential impact on victims and witnesses, as well as the potential impact on the perception of the Court—all factors that would hypothetically apply in the Kenyatta case had the question arisen.

Cooperation: Prosecutor seeks ASP finding of non-compliance against Kenya

In 2014, the prosecutor and Kenyan government sparred over requests to access Kenyatta’s personal records that the prosecution considered vital to proceeding to trial. The prosecution subsequently requested a finding of non-cooperation against the Kenyan government, alleging that it was withholding key evidence. In December 2014, despite finding that Kenya’s cooperation had not met the standard of good faith cooperation required from states parties under the Rome Statute, trial judges rejected the request and referral of the matter to the ASP. The Appeals Chamber reversed the decision in August 2015, referring the matter of Kenya’s cooperation back to the Trial Chamber. 

Victims

725 victims were authorized to participate in proceedings in the Kenyatta case, represented by Fergal Gaynor. 

New procedure for victims’ participation

On 3 October 2012, Trial Chamber V set up a new procedure for victims’ participation in the Kenyatta case. Only victims who wish to actually appear in court would now need to submit a written application whereas victims wishing to participate remotely through a common legal representative would be subject to a much less rigorous registration procedure.

Questions on reparations after withdrawal of charges

With the withdrawal of the charges against Kenyatta, it remains uncertain how victims will obtain justice. Many are in need of financial, medical, and psychosocial support. The Trust Fund for Victims (TFV) could have addressed the latter two needs through its general assistance mandate but was not operating in Kenya during the proceedings against Kenyatta. While some have probed the Court’s ability to order reparations by the TFV and/or Kenya regardless of a case’s outcome with respect to the accused, the TFV is limited by its budget and the Ruto/Sang Trial Chamber ruled that ICC-ordered reparations would not be available absent an ICC conviction.

Civil society has called on the Kenyan government to provide reparations and assistance to recognized victims of the 2007-08 PEV.