The Internal Investigation of the botched International Criminal Court (ICC) case of the ‘Kenyatta Case – The Prosecutor v. Uhuru Muigai Kenyatta – FORMERLY – The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11’, which the investigation started in Kenya in October 2010 and failure to produce anything binding or to justify the charges against them. So the charges was dropped by 2013 and 2014. While the whole case was terminated by March 2015.
Now the ICC has suddenly dropped an statement into their internal investigation into why it ended like this. Even if they have the warning, of if any of the judges get new evidence on the case. They might re-open it. However, what this states is very serious and the acts done to interfere in the investigation. Says also a lot, also about the shortfall of the jurisdiction and help from the government of Kenya. Which isn’t weird, as the state was investigating the President and allies of him. They don’t want any issues with an foreign court. That is all natural in the scheme of things.
Just look here:
“The prosecutorial process in the Kenya cases, the experts found, was hampered by deadlines set by the first Prosecutor that were based on considerations other than what they considered to be sound prosecutorial practice. In their view, the effectiveness of the investigations and prosecutions was significantly undermined by a “decision over assessment” tactic respecting cases and a target-based – as opposed to evidence-based – approach to investigation and charging. This, coupled with other problems, meant that the prosecutions were burdened with weak cases, relying on one or only a small number of insider witnesses – whose evidence could not be independently verified by the OTP – to establish essential elements of the case” (ICC, 26.11.2019).
“The key point concerning the Government of Kenya was the OTP’s delay in seeking the assistance of the Trial Chamber to compel cooperation, resulting in part from the contradictory approaches advocated by JCCD and PD (that is, continue to try to persuade the authorities to cooperate versus applying to the Trial Chamber for a finding of non-cooperation against the Government, respectively). This lesson has been taken on board. The OTP also has a range of strategies to secure cooperation from States Parties and situation countries, and these are still evolving” (ICC, 26.11.2019).
“The investigations were further undermined by the decision to delay in-country investigations, which did not take place until after the CoC hearings. Unfortunately, after those hearings, investigating in Kenya became much more difficult: support for the ICC among Kenyans had been eroded by a concerted campaign of negative propaganda; OTP personnel were followed, putting them and anyone they contacted at risk; the witness interference orchestrated by the suspects/accused became even more pervasive; and the Government of Kenya (GoK) became even less willing to co-operate, if not actively interfering with OTP operations and witness security” (ICC, 26.11.2019).
“As noted above, the GoK did not support the OTP investigative activities, instead it either allowed interference with witnesses inside and outside of Kenya and with OTP activities in Kenya, including surveillance of OTP investigators, and/or may have been directly involved in such interference. It refused Requests for Assistance (RFAs) thereby hampering the OTP’s ability to access potential evidence, or imposed such conditions or access as to, in reality, make that access so cumbersome as to be unworkable” (ICC, 26.11.2019).
We can see the ICC started this out on the wrong premise and lost because of it. They couldn’t present well enough evidence, either because of the deadlines. Nor the way the small pockets of witnesses was silenced. This was done, as the ICC haven’t secured them or ensured their safety. This was a mismanaged approach by the ICC and the ones seeking justice on this case. The Kenyatta case was finally dropped, because the ICC and their partners hadn’t done their job, neitehr had the Government of Kenya done its either. Therefore, this one got stalled and the charges got dropped.
Like the charges against William Ruto, Joshua Arap Sang and Uhuru Kenyatta. This was done because out of the 10 witnesses supposed to be put forward, only 5 showed up. That means the prosecution and the material they could assess wasn’t substantial enough nor digging deep enough. The ICC didn’t do their work and the Kenyans was doing internal actions to ensure the ICC didn’t get a case to begin with. They silenced the witnesses and intimidated the ones who could have come forward to the ICC.
This should be a lesson for the ICC. That to quick deadlines, not enough work with the coordinated leadership of where they charging people and get the proper jurisdiction might be more important. As they couldn’t do their job, as the Kenyans was putting hampers in their way. Next time find out ways to secure the witnesses and the affidavits to collect evidence before they are afraid of testifying. Peace.
At the height of the violence that gripped Kenya after the disputed 2007 elections, the Party of the National Unity and the Orange Democratic Movement, who were parties to the conflict, wrote to the International Criminal Court (ICC) seeking its intervention to stop what they called genocide. A local investigatory commission with international participation found that some actions during the post-election violence likely met the threshold of crimes against humanity and recommended the establishment of a Special Tribunal for Kenya, or in the alternative, the handover of the sealed evidence to the Prosecutor at the ICC.
Efforts to establish the Tribunal were defeated by political forces aligned to suspected perpetrators, hence triggering the handover of evidence to the ICC and the subsequent investigation. Six Kenyans were named in connection with seven crimes against humanity charges; the ICC Pre-Trial Chamber II confirmed charges against four suspects. Two suspects – Uhuru Kenyatta and William Ruto were subsequently elected President and Deputy President, respectively, before their trials could begin at the ICC. Thereafter, the Prosecutor withdrew charges against two suspects – Francis Muthaura and Kenyatta – citing witness bribery and intimidation, as well as failure by the Kenya government to cooperate with the court. The remaining case against Ruto and journalist Joshua arap Sang was terminated citing “intolerable levels of witness interference and political meddling”.
Kenyans for Peace with Truth and Justice (KPTJ) has followed closely the developments around accountability for the crimes committed during the 2007 post-election violence. Since the opening of the investigations in March 2010, we have observed certain shortcomings and challenges on the part of the Government of Kenya, the ICC, the Assembly of States Parties (ASP) and the African Union (AU). This brief seeks to focus on key issues emerging from the situation that the ICC and international justice finds itself in today, while drawing linkages from how the Kenya cases and other ICC cases were managed. KPTJ also makes recommendations on actions that require to be undertaken by the ASP, the ICC and African governments in order to address the emergent challenges.
A Contradiction in the Mandate of the AU Open Ended Committee
Peace, Security and Stability
A look at State Cooperation
Taking stock of the experience in the Kenya cases
UN Reform vs ICC Reform
This brief was prepared by Kenyans for Peace with Truth and Justice (KPTJ), a coalition of Kenyan citizens and over 30 organisations working in the human rights, governance and legal fields that came together during the crisis over the disputed results of the 2007 presidential election to seek truth and accountability for the elections and the widespread violence that followed; and who continue to work closely with the victims of that period. It is a brief update on the situation in Kenya as pertains to pursuing accountability for the crimes against humanity committed during the 2007-2008 Post-Election Violence as well as its adherence to its obligations under the Rome Statute.
 Assembly/AU/Dec.616 (XXVII)
 Press Release: “UN/African Union: Reject ICC withdrawal”. Available here: http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/552-un-african-union-reject-icc-withdrawal.html
 Article: “Which African states slammed Burundi, South Africa and Gambia’s withdrawal from ICC?” Available here: http://www.ibtimes.co.uk/which-african-states-slammed-burundi-south-africa-gambias-withdrawal-icc-1589711
“A move by four members of parliament from the Mount Kenya region led by Kabete legislator Ferdinand Waititu to endorse Water and Irrigation Cabinet Secretary Eugene Wamalwa as their preferred candidate for the post of Nairobi Governor, has already stirred the political waters in the jubilee alliance. A section of Nairobi mps allied to the ruling coalition have dismissed the declaration made in Kiambu, terming it as self-serving” (Kenya Citizen TV, 2016).
The Jubilee Alliance Party under President Kenyatta and Deputy President Ruto are running around worried about the opposition. Even their spokesperson Eric Kiraithe has today addressed the planned rally of the opposition Coalition for Reform and Democracy (CORD) which is run by Hon. Raila Odinga, Hon. Stephen Kalonzo Musyoka and Hon. Moses Wetan’gula.
We can see that CS Joseph Nkaisserey have already yesterday warned the CORD of demonstrating against the Electoral Commission. While later today the government has both locally in Nairobi said their peace on the Uhuru Park rally on 1st June 2016 and also now with the Government spokesperson Kiraithe also shut down the planned rally in Nakuru. It seems like the ruling regime is struggling with the Opposition and whatever they do, they have to silence them.
What Kenyatta and Ruto wishes is the Opposition to be silent and just be there. While in 2006 the ousted leader of KANU Uhuru Kenyatta held a illegal rally in Uhuru Park which was suffocated with tear-gas, he himself described it like this: “What has happened today is a travesty of justice and we shall not relent until we, the bonafide officials of Kanu, are recognized” (BBC, 2006). So if the President has remembered that occasion and what the Police did to his supporters when he was opposition, he might have honoured the men and woman a little more. Instead he is just like the leaders before him, ruthless in power and acting vigilantly while being in opposition.
That the Ruling Regime and Ruling Party want to run the day and have the close-up with all people is understandable. But with time Uhuru Kenyatta is acting alike the ones he took over for, without showing any progress or openness, as himself wanted as a Opposition figure while Mwai Kibaki was the President. So now that it’s in the ending of his first term, he is acting so similar and using tear-gas against opposition; he have emulated the Kibaki way and also added the paranoid CS Nkaissery who fears all actions of Opposition and will use the Police Service every step of Odinga, Kalonzo Musyoka or Wetan’gula thinks of showing up.
With this in mind the Jubilee seems to be so worried, so scared and fearing the Opposition as they have to crash all demonstrations, have to stop their rallies and file Police Orders together with Public Notices to silence them. All kind of Civil Servants have to comply and work for Jubilee and their political agenda as the Opposition and their members are nearly not even citizens, they are unnecessary political opponents that Kenyatta really wants to silence and easily get into his second term as President.
There obstacles in the road ahead. There mountains, rivers and deserts before you enter paradise again Hon. Kenyatta. As you shouldn’t fear the Opposition, but be a real big-man and embrace it. The richness isn’t the embezzled funds from NYS or Eurobond, but rather honest policy towards all kind of citizens, even opposition. Just like President Obama tried By-Partisan in Congress in his first term… maybe, you should consider to negotiate and create a peaceful atmosphere, instead of using tear-gas, live-bullets and water-canons to disperse the fellow Kenyans who wants to listen to the WDM, ODM or FORD-K. They should be without issues, just like you felt hurt in 2006 in Uhuru Park. It is a decade ago and surely all the VIP treatment have been well spent on you since.
Short term memory is not an simple thing, but when you get all the perks of being the VIP, the Executive and the Head-of-State; so he is now used to getting his will and his words are turned into legislature. With that in mind, the Power of Government and rule must have left the old him behind. The old being opposition having to get control of the government from somebody else; as that being said they are now acting as the old ones and even bad at times as they are not only into tear-gas, but also live-bullets at demonstrators.
Jubilee has lost sight of what it means to be government, it means to govern; not to control and intimidate fellow citizens. That is their main attraction nowadays. As the CORD is acted upon as they are common criminals and all their main activity is harassed and attacked, just as the rallies of Wenta’gula we’re earlier in the year. The same happens now that the CORD are besieged by Jubilee who doesn’t let them manoeuvre. They can only exist if they are silent… So silent that they can work without any questions or interference in Parliament, as they are just somebody without support; that is how it seems from afar and that is the wish from Jubilee.
Jubilee is the Government and the Ruling Party, therefore everybody should just apply and accept their rule. Well, that doesn’t happen in Kenya or anywhere else, as there is also other views on how Government should work. That should be viable for Kenyatta, as he was in the wilderness before and because of that act different with the Opposition. CORD have beaten, hurt, detained and the Police have even killed CORD supporters. So with this in mind with the new idea of only letting Jubilee have the ability to celebrate and rally supporters show the little care for anybody else than the Jubilee.
This here is freedom, liberty or national security, the way the Jubilee, and civil servants are blocking the CORD now is just personal between Kenyatta-Ruto Versus Odinga-Musyoka-Wetan’gula. That is visible and now manifested in the arrogance from the Government stopping the peaceful rallies and celebration of the Madaraka Day. Peace.