by David Tolbert*
Kenyan President Uhuru Kenyatta (c) AP
President Obama’s historic visit to Kenya came at an important crossroads for the country. While much of the attention of the press was directed at Obama’s Kenyan roots, for many, Obama’s emphasis on justice for all Kenyans is what will be remembered. This is particularly true given that Obama’s visit came four months after President Kenyatta’s official apology to, and announcement of reparations for, the many victims of the 2008 post-election violence, as recommended by Kenya’s Truth, Justice and Reconciliation Commission (TJRC).
The issue of justice, as well as endemic corruption and the stalled reform process in Kenya, will remain long after the cheers for the U.S. President have faded. President Kenyatta has, however, an opportunity in the wake of Obama’s historic visit to go beyond rhetoric and both deliver on his apology and the issues Obama has raised. Kenyatta and the Kenyan authorities should not miss this opportunity.
Kenyatta’s promising announcements require concrete steps and actions without further delay. His four-month old decision to establish a fund to provide relief to victims was followed and confirmed by the inclusion of the first tranche of resources-one billion shillings (almost $10 million U.S. dollars) in the new annual budget. Now is the time to design a comprehensive and gender-sensitive reparations program that starts with the most vulnerable victims. Opening space for the participation of victims and listening to their needs and demands must be the first step. Concurrently, an efficient and transparent administrative system and infrastructure for the program must be created. Continue reading
Kenyan President Uhuru Kenyatta © AP
Yesterday, the Prosecutor of the International Criminal Court, Fatou Bensouda, filed a notice to withdraw charges against Kenyan President Uhuru Kenyatta citing a lack of evidence in the case. In her press release, Prosecutor Bensouda stated that there was no reasonable prospect of conviction at trial on the basis of the evidence before her. She acknowledged that
“this is a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done.”
She cited a number of key difficulties that her Office has faced in the prosecution of President Kenyatta for crimes against humanity including the death of key Prosecution witnesses and the withdrawal of others on the grounds of fear; the recanting by key witnesses of their accounts to investigation teams; and the Kenyan Government’s non-compliance with the investigation.
Fergal Gaynor, the legal representative of victims in the case said that the Kenyan Government had done everything in its power to obstruct the progress of the case.
Her decision comes following the 3 December refusal by the Trial Chamber to further adjourn the start of Mr Kenyatta’s trial pending the Government of Kenya’s compliance with the Prosecution’s request for records.
A withdrawal of charges is not legally an acquittal and the case against President Kenyatta may be reopened or brought in a different form if new evidence comes to light.
Prosecutor Bensouda called yesterday a “dark day for international criminal justice.”
Kenyan President Uhuru Kenyatta (c) AP
Yesterday, the defence team for Kenyan President Uhuru Kenyatta filed a request before a Trial Chamber of the International Criminal Court (ICC) to excuse the Kenyan President from attending in person a Status Conference scheduled for 8 October 2014. In the “urgent request”, lawyers for Kenyatta explain that his position as President of the East African Community requires him to chair a regional summit in Kampala, Uganda on the day in question. The meeting is to address economic development and regional security issues.
The request was filed pursuant to Rule 134 quater of the ICC’s Rules of Procedure and Evidence, which states that an accused subject to a summons to appear (as President Kenyatta is) may request excusal from attendance at trial when mandated “to fulfil extraordinary public duties.” The Trial Chamber shall grant the request when it considers excusal to be in the interests of justice and provided that the rights of the accused are fully ensured.
The rule is a recent amendment to the Rules of Procedure, which was adopted by the Assembly of States Parties in November 2013 following a request by the African Union.
President Kenyatta is charged with crimes against humanity perpetrated during the post-electoral violence in 2007. The start date of his trial has been postponed on numerous occasions amidst Prosecution complaints that the Kenyan Government has failed to disclose requested documents.
Uhuru Kenyatta at the ICC
Today, the Prosecutor of the International Criminal Court (ICC) requested that the trial against Kenyan President Uhuru Kenyatta be adjourned indefinitely.
ICC Chief Prosecutor Fatou Bensouda said she still did not have enough evidence to proceed with the trial, which was due to resume on 7 October.
She argued that the case should be delayed until the Kenyan Government complies in full with outstanding ICC cooperation requests.
“Under the circumstances, it would be inappropriate for the Prosecution to withdraw the charges against Mr Kenyatta before the Government of Kenya complies with the Revised Request. […] “In the five months since the Prosecution submitted its 8 April 2014 Revised Request, the Government of Kenya has produced a total of 73 pages of documentation. Some are not responsive to the Revised Request; even the responsive material is a fraction of the information sought”, she says.
Kenyatta is charged as an “indirect co-perpetrator” for crimes including murder, rape and persecution allegedly committed by others during violence that left more than 1,000 people dead after his country’s 2007 elections. He denies the allegations.
Kenyatta’s lawyers have repeatedly said the whole case should be dropped because of a lack of evidence.
President Uhuru Kenyatta (c) EPA
On 31 March 2014, the Trial Chamber of the International Criminal Court (ICC) adjourned the trial of Kenyan President Uhuru Kenyatta until 7 October 2014.
The purpose of the adjournment is to give the Government of Kenya an opportunity to comply with a cooperation request by the Prosecution to hand over financial and other documents related to President Kenyatta. The records are allegedly relevant to proving that President Kenyatta financed the crimes with which he is charged.
The Prosecution had initially requested these documents from the Kenyan Government in April 2012 without success. The Government argued that the Prosecutor has no authority to make such a request, under either the Statute and the Rules of the Court or Kenyan domestic law.
its decision, the Trial Chamber confirmed that the Prosecutor does have an independent authority to make such a cooperation request under Article 93(1) of the Rome Statute. It deferred consideration of the Prosecution request for a finding of non-compliance by the Kenyan Government until after the expiration of the adjournment period.
President Kenyatta is charged with crimes against humanity allegedly committed during the post-electoral violence in Kenya in 2007-2008.