The former prosecutor of the International Criminal Court (ICC) Luis Moreno Ocampo’s ‘autocratic leadership’, unsound prosecutorial practices and the prosecution’s internal weakness and excesses combined to sink the Kenyan post-election violence cases.
In addition, external factors such as insufficient co-operation by Kenya and witness tampering and interference also contributed to the failure of the cases, an internal review commissioned by the current ICC Prosecutor Fatou Bensouda has found.
The review also found Mr Ocampo underestimated the Kenyan suspects he was going after and did not pay attention to concerns from other quarters.
“It may be that the Kenya cases simply reflected the inability of the ICC to adequately respond to the challenges presented in cases against powerful, high-level accused willing to engage in concerted propaganda campaigns and pervasive witness interference,” the three-person team of experts appointed by Mrs Bensouda said in their report.
“Certainly, it would appear the OTP (Office of the Prosecutor, under Prosecutor 1 (Mr Ocampo), underestimated the ability of the powerful suspects/accused in these cases to undermine the integrity of prosecution evidence, and overestimated the ability of the OTP to effectively address the challenges presented by such conduct. Indeed, Prosecutor 1 dismissed, without explanation, concerns voiced to him about whether the ICC could take on targets that were powerful, sophisticated, well-funded and organised, given the problems within the Victims and Witnesses Unit (VWU) at the time,” the internal review report further observed.
It noted that due to lack of proper investigations, the OTP was left with weak cases and “reliance on only one or a small number of insider witnesses, whose evidence could not be independently verified by the OTP and whose continued co-operation with the OTP was at risk due to this pervasive witness interference campaign and difficulties with the witness protection programmes.”
“At confirmation, the Prosecution was still struggling to fill evidentiary gaps and, according to one interviewee, was overwhelmed by large, well-resourced defence teams led by very experienced counsel. At the pretrial stage, the weakness of the cases against most of the remaining accused became even more obvious,” the report noted.
Moreover, Mr Ocampo was found to have over-relied on domestic and international non-governmental organisations (NGOs) in his decision-making with the report recommending that in future “the relationship between the OTP and NGOs must be one carried on at arm’s length”.
Mr Ocampo was the first ICC prosecutor and was in office when The Hague court indicted then Deputy Prime Minister Uhuru Kenyatta, William Ruto, Henry Kosgey, Francis Muthaura, Joshua Sang and former Commissioner of Police Hussein Ali. Mrs Bensouda was Mr Ocampo’s deputy at the time.
He left in 2012 before the trials started, but after the pretrial chamber had confirmed charges against Mr Kenyatta, Mr Ruto, Mr Sang, and Mr Muthaura.
The case against Mr Kenyatta collapsed in December 2014 while Mr Ruto’s and Mr Sang’s cases were dropped in April 2015.
In her statement accompanying the executive summary of the review report, Mrs Bensouda acknowledged the difficulties they had with Kenyan cases.
“While my office spared no effort to advance and salvage the cases in the Kenya situation, and had to take difficult but professionally responsible decisions in the process, the experience in the situation provided learning opportunities that have assisted, and continue to assist, the office,” Mrs Bensouda said.
In response to the accusations against him, Mr Ocampo in turn accused the team of experts of themselves being autocratic.
“The report considered that: I have an ‘autocratic leadership style’. The experts arrived at such conclusion using an autocratic method: they did not interview me or allowed me to provide explanations to their concerns,” Mr Ocampo said in response annexed to the executive summary of the review report.
The report observed that Mr Ocampo pushed through the cases through OTP “regardless of the evidentiary insufficiencies, and that any other view was disloyal.”
The ICC released the report with the executive summary and Mr Ocampo’s responses on Tuesday, although it was completed way back in February 2018.
This article was first published by Daily Nation