By Naisula Lesuuda & Joy Adhiambo Gwendo
Those interested in the International Criminal Court would do well care to remember a question posed by William Schabas, author of the authoritative introduction to its workings: “Does it really make sense that an objective application of the gravity criteria proposed in materials from the Office of the Prosecutor leads inexorably to five contiguous states in Central Africa?”
No intelligent watcher of the court believes that question can reasonably be answered in the affirmative.
Equally, no intelligent observer of the court’s conduct of the two main Kenyan cases could reasonably believe that the election of March 2013 explains why the cases have come so close to collapse. The cases, it must be emphasised, went wrong long before that.
No amount of blame shifting – no claim that the trials were going well before the election of Uhuru Kenyatta and William Ruto in March 2013 destroyed them – can change that.
It is still useful to see why, if only to prevent ourselves from falling for the reasoning in the future, perhapsunder a slightly different guise. It is suggested that the prosecution case was on course until the March election, after which the government of Kenya embarked on a massive effort to intimidate and embarrass witnesses.
Those witnesses then removed themselves from the case; it will collapse for lack of their participation. Were it not for the election, the trials would have proceeded to their logical conclusion.
Doubts about that reasoning are not few. Here I will concentrate on just one main point: these allegations have already been made before the court, and the judges of the court found that they had little merit.
Even before the election of Uhuru Kenyatta and William Ruto, the prosecution was in trouble. In April 2013, it emerged that a majority of the prosecution’s trial witnesses had been interviewed after confirmation.
This finding presented an apparent conflict with the court’s own rules, under which the investigations should have been more or less completed before the confirmation hearings.
It also seemed to conflict with the accused’s right to a fair trial, since, in introducing a majority of its evidence and witnesses after confirmation, the prosecution appeared to be preparing a substantially different case from that which had passed at confirmation.
The prosecution offered several replies to these apparent problems. In particular, they said that the security situation in the Kenya had not allowed them to complete their preparation before confirmation. Two serious problems follow from that claim.
First, this admission directly contradicts earlier claims by the first prosecutor, Luis Moreno-Ocampo. Before the confirmation hearings, he was publicly bullish: confident that all his witnesses were safe; confident that his evidence was secure, reliable, and sufficient for conviction.
Indeed, in a televised press conference on 24 January 2012, he even said that Kenya’s government had shown exemplary co-operation: it had set, he said, a new standard in cooperation with international justice.
In private – in its submissions to the court – the prosecutor’s office said directly the opposite: that its case was incomplete, and that that incompleteness was owed to the security situation in Kenya.
One of these claims must be false. Either the prosecution had sufficient evidence to go to trial, in which case its submissions to the court were false, or it did not have sufficient evidence to go trial, in which case the prosecutor’s public claims were false.
The court heard the prosecutor’s claims. In its decision of 26 April last year, it decided that the prosecutor’s excuse – that the security situation in Kenya prevented it from completing its investigation to the standard required – was too vague and unspecific to meet the standard required.
In court, the prosecution had its opportunity to make the very same argument that its supporters are making now. It had the opportunity to excuse its misconduct of the investigations. Those arguments failed to move the court.
The argument it is now using is the same argument it used then. The argument deserves the same fate.
We should close with a word about the origins of the prosecution’s strategy. It is clear that the prosecution’s strategy was to move as quickly as it could to trial.
In that it was helped by the low standards of evidence which it had to meet: one judge in the matter even said that no miscarriage of justice for the accused was possible, so long as the defence had a chance to respond to it – a pronouncement that amounted to a wholesale reversal of the burden of proof.
This lowering of standards was justified inside and outside the courtroom as a protection of the rights of victims. But the lack of proper control on the prosecution’s evidence has led, predictably enough, to the use of unreliable evidence, and the near-collapse of the case. Truly, haste makes waste.
The writers are Senators