Where do the ICC Kenya cases stand?

Ruto/Sang: Protective measures for prosecution witnesses

In January, the ICC trial against deputy president William Ruto and broadcaster Joshua Sang, which began in September 2013, resumed following the Court’s winter recess.

The trial has encountered numerous problems with alleged witness interference and intimidation.

The prosecution has presented it 28th witness, who testified via video-link and with protective measures of facial pixilation and voice distortion. Many witness testimonies are being heard in private session to protect their identity.

Last year, judges granted a prosecution to compel eight reluctant witnesses to testify.

In early January, Meshak Yebei, a Kenyan man who had been contacted by the OTP during the course of its investigations into the post-election violence in Kenya, was reportedly killed, prompting condemnation by ICC Prosecutor Fatou Bensouda.

The prosecution stated that it had initially contacted Yebei for assistance with its case, but he was never included on its list of witnesses because it had information that implicated him in a scheme to corrupt prosecution witnesses.

Another Kenyan, Walter Barasa, remains wanted by the Court for charges of interfering with ICC witnesses. He is fighting his extradition to The Hague in the Kenyan courts.

Meanwhile, Ruto has been excused from attending certain trial hearings to allow him perform certain governmental duties.

Ruto and Sang are suspected of planning and organizing crimes against humanity against perceived supporters of the Party of National Unity (PNU)— predominantly from the Kikuyu, Kamba and Kisii ethnic groups—during 2007-8 post-election violence in Kenya.

Kenyatta: Prosecution fighting non-compliance decision

In the case against Kenyan President Uhuru Kenyatta, against whom charges were withdrawn in December last year, the prosecution has applied for leave to appeal the Trial Chamber’s decision not to make finding of non-compliance against the Kenyan government.

Kenya and the legal representative for victims in the case have since submitted observations on the prosecution application.

Kenyatta was charged with orchestrating crimes against humanity during Kenya’s 2007-8 post-election violence, but his trial opening was postponed on several occasions.

However, the ICC prosecutor withdrew the charges against Kenyatta for lack of evidence after judges had rejected a request for indefinite adjournment until the Kenyan government complied with requests for information.

Following the withdrawal of several key prosecution witnesses late last year, the prosecution said it did not consider the evidence available to be sufficient to prove Kenyatta’s alleged criminal responsibility beyond reasonable doubt.

It said however that it believed that Kenyatta’s phone, financial and land records may hold crucial evidence. Prosecutor’s requested the judges to make a formal finding that Kenya was not cooperating in furnishing them the records and to refer the matter to the Assembly of States Parties (ASP) – the ICC’s governing body.

In a decision issued on 3 December 2014, judges stated that the Kenyan government’s non-compliance with requests for cooperation had compromised the prosecution’s ability to thoroughly investigate the charges against Kenyatta.

However, the Chamber stated that, even though there can be a case that reaches the threshold of non-compliance under article 87(7) of the Rome Statute, it does not automatically mean a finding of non-compliance.

They also declined to refer the matter the ASP. The Chamber was not persuaded that a referral to the ASP would facilitate a fair trial or the interests of justice, and did not consider it appropriate for the proceedings to be further prolonged under the circumstances.

In another decision issued on the same day, the judges declined the Prosecution’s request for further adjournment as well as the defense’s second request to terminate the case entirely.

In a statement the prosecutor has said that the hurdles the OTP has encountered in attempting to secure the cooperation required for this investigation have in large part, collectively and cumulatively, delayed and frustrated the course of justice for the victims in this case.

In its application for leave to appeal the Trial Chamber’s non compliance decision, the prosecution argues that the Trial Chamber adopted an incorrect two-stage analysis.

The decision of the Trial Chamber on whether or not to grant the OTP leave to appeal remains pending.

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