After more than five years, it appears judges at the International Criminal Court had had enough. Last week, they effectively pulled the plug on the case against President Uhuru Kenyatta, who was accused of crimes against humanity in relation with the 2007-08 post-election violence. Two days later, Prosecutor Fatou Bensouda withdrew the charges, bringing to an end a case that had been floundering almost from the moment Uhuru ascended to power.
This leaves only two defendants out of the original six that the Office of the Prosecutor had targeted in 2010 as bearing the highest responsibility for the deaths of more than 1,100, displacement of more than 660,000 as well as countless incidents of assault and sexual violence. Importantly, one of them is the country’s Deputy President, William Ruto, whose case, alongside co-defendant Joshua Sang, is ongoing.
Undoubtedly, Kenyatta’s case was the pick of the lot; the first time a sitting Head of State had been subjected to the authority of the court. This is thus a bitter-sweet moment for supporters of the ICC. On the one hand, the fact that the case even went ahead established the principle that the most powerful people can be held to account. This was despite the best efforts of the Kenyatta administration, both at the African Union and at the UN Security Council, to establish immunity for high-ranking government officials and to have the cases deferred.
The fact that the withdrawal of the cases came at the prompting of the judges also does much to rescue the court from the accusations of being a “toy of declining imperial powers” and a tool for regime change in Africa. In the end, it was all about the evidence or lack thereof.
On the other hand, the withdrawal of charges demonstrated just how difficult it is to pursue a case against those same most powerful people. The rhetoric from the prosecution underwent a remarkable metamorphosis, from the heady confidence and, perhaps, arrogance of Bensouda’s predecessor, Luis Moreno-Ocampo, to the desperation of Bensouda herself as her case crumbled in the aftermath of Kenyatta’s election last year.
The prosecution continues to blame many of its woes on the Kenyan government failure to cooperate on requests for evidence as well as what appeared to be a concerted campaign of intimidation resulting in an unprecedented rate of withdrawal and disappearance of witnesses. However, though acknowledging that the obstructive conduct of the government had compromised the Prosecution's ability to thoroughly investigate the charges and the court’s ability to discharge its mandate, the judges have squarely pointed the finger at the prosecutor.
And that has got to be the most disappointing finding for both the victims and supporters of the court. The judges attributed the collapse of the case to the “failure on the part of the Prosecution to take appropriate steps to verify the credibility and reliability of evidence on which it intended to rely at trial.” As a result of this failure, at least one crucial witness was found to have been lying.
The judges also decried the prosecution’s lackadaisical approach to following up on requests for evidence from a reluctant Kenyan government. In some respects, they found, it was “not reflective of a prosecutorial and investigative body effectively seeking to obtain the requested materials.”
Still, this does nothing to excuse the reprehensible behaviour of the Kenyan authorities.
The campaign at the AU and UN to get the cases dropped flew in the face of both the letter and spirit of the Kenyan constitution and throughout the course of the cases, the government displayed more concern for the fate of its political leaders than for the principles of truth and justice or the interests of the survivors of the violence they were accused of perpetrating.
For all its talk of reconciling communities, the government has actually done very little to ensure restitution for the victims or to prevent further conflict and displacement. The fact that there has been no serious local attempt to prosecute more than a handful of people for the 2008 violence has bred an atmosphere of impunity for the murder and displacement of Kenyans. This year alone, according to the UN’s Office for the Coordination of Humanitarian Affairs, more than 300 have been killed and over 220,000 displaced by inter-communal violence over resources and political representation.
So, was it all worth it? The answer has to be an equivocal yes. The problems with the cases have highlighted serious issues for the international justice system -from witness protection to dealing with recalcitrant states- that will hopefully lead to reform and better performance in future cases. It is also undeniable that the indictments helped dampen elite appetites for political violence during last year’s elections. Having the President subject himself to the authority of the court has also affirmed the supremacy of the constitution and the principle that political office should not be a shield against accountability. And while the prosecution may have failed, the court has at least delivered a measure of justice to Kenyatta, if not to Kenyans.
However, in the final analysis, the cases have shown that societies can outsource the means but not the responsibility for delivering justice. And, as Frederick Douglass said, “power concedes nothing without a demand.” For as long as there is no genuine will within the country, and thus no pressure on the state, to ensure punishment of wrongdoers, international avenues will continue to be of limited utility. “The world may have failed them, but they will not be let down at home,” said Kenyatta of the victims. But the truth is that the victims were long ago abandoned at home.