The entrance of the International Criminal Court (ICC).

(Brussels) – The International Criminal Court (ICC) action to drop charges against President Uhuru Kenyatta of Kenya sets back efforts to end the country’s entrenched culture of impunity, Human Rights Watch said today.

On December 3, 2014, the ICC’s judges turned down a prosecution request for further delay to try to get records from an uncooperative government in Kenya. The judges gave the prosecution one week to indicate whether it had sufficient evidence to go to trial or to withdraw the charges. On December 5, the prosecution stated it did not have the evidence to prove Kenyatta’s alleged criminal responsibility beyond a reasonable doubt.

“It’s clear that Kenya’s long tradition of impunity and pressure on witnesses have been serious obstacles to a fair process before the ICC,” said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. “But these roadblocks make it all the more important for the ICC to assess how it can move ahead with high-profile cases against powerful people accused of serious crimes.”

ICC judges charged Kenyatta in January 2012 with crimes against humanity for his alleged role in organizing and financing murder, displacement, and rape during Kenya’s 2007-2008 post-election violence. In early 2014, as a February trial date neared, the prosecution admitted its investigations had hit a dead end, including because a key insider witness had confessed to giving false testimony.

In March, the judges had granted a temporary adjournment in the trial to permit the prosecution and the government of Kenya to work together to resolve a long-outstanding request for Kenyatta’s financial and other records, which the prosecution hoped could provide additional evidence. When the vast majority of records had still not been produced by October, the prosecution asked the judges to refer Kenya to the ICC’s Assembly of States Parties for non-cooperation, and adjourn the case indefinitely until the government complied.

The defense petitioned the judges to close the case. In two decisions on December 3, the judges found that further delay – particularly since the prosecution was uncertain whether even full cooperation by the government would lead to sufficient evidence – would be incompatible with the interests of justice. While the judges faulted Kenya for not complying with its obligations to assist the prosecution, they decided against any formal finding of non-cooperation, which could result in the ICC’s Assembly of States Parties deciding on what enforcement action to take on non-compliance.

“The judges made clear that Kenya’s inaction compromised the search for justice,” Evenson said. “The case should prompt serious discussion for future cases about what the court can do if the government of the country involved won’t cooperate.”

The trial before the ICC of Kenya’s deputy president, William Ruto, and the former radio broadcaster, Joshua arap Sang, in a related, but separate, case will continue. The prosecution’s decision on December 5 does not preclude it from bringing fresh charges if it secures new evidence.

Witness Interference
Pervasive witness interference and intimidation have dogged inquiries into the post-election violence in Kenya, and the ICC prosecution contended that an anti-ICC climate in Kenya was a factor in undermining its investigations against Kenyatta. The ICC prosecution has noted that, while it does not have evidence of direct intimidation, three trial witnesses withdrew due to security concerns, as did several witnesses who had agreed during pretrial proceedings to be part of the case. The prosecution has alleged that members of the Mungiki, a criminal gang it accused Kenyatta of soliciting to carry out attacks, have been killed or have disappeared.

The ICC prosecution has also asserted that unidentified people attempted to persuade another three withdrawn witnesses to recant or withdraw, including by offering bribes, and that it would consider pressing charges.

Social media and blogs have been used to expose the identities of purported ICC witnesses. The first witness testifying in the Ruto and Sang trial, whose identity had not been disclosed publicly under ICC-ordered protective measures, was named on Twitter and blogs in Kenya. The ICC trial chamber termed this a deliberate attempt to intimidate the witness and warned that revealing the protected identity of a witness could lead to prosecution before the ICC.

In some cases, social media and blogs have exposed people to threats by erroneously branding them witnesses for the ICC against Kenyatta and Ruto, and have been used to spread hostility toward human rights defenders perceived to support the ICC process. Even though the Kenyan authorities know the identities of some of those behind the blogs, there were no apparent efforts to stop the threats.

A Kenyan journalist, Walter Barasa, is wanted on an ICC arrest warrant for allegedly offering bribes to prosecution witnesses in the Ruto and Sang case on the basis of a “criminal scheme devised by a circle of officials within the Kenyan administration,” according to an ICC statement. On May 14, a Kenyan high court ordered Barasa arrested, but later that month a higher court suspended the order pending a decision on an appeal lodged by Barasa.

Following separate defense allegations of intimidation and interference with its potential witnesses, the conduct of a prosecution witness in the Kenyatta case is under investigation.

“For the truth to be heard in court, witnesses must be able to come forward without fear of reprisal or harm,” Evenson said. “By failing to condemn or investigate threats against activists the Kenyan government has stoked a climate of hostility to derail prospects for justice before the ICC.”

Lack of Cooperation
Kenyatta has appeared voluntarily before the ICC and promised to cooperate with the ICC after taking office in April 2013. But, once he was in office, his administration continued the previous government’s policy of dragging its feet on the prosecution’s requests for assistance.

Under Kenyatta the government also initiated an aggressive diplomatic campaign to lobby leaders, particularly within the African Union, to support ending the ICC’s cases, terming the ICC “the toy of declining imperial powers.” This effort ignored the fact that both Kenyatta’s allies and Ruto helped to undermine earlier efforts to establish a tribunal in Kenya to prosecute the post-election violence, and, before the two men were summoned by the ICC, had called for the ICC to step in. There have been at most a handful of convictions in Kenya for serious crimes committed during the post-election violence.

“The ICC only stepped in because Kenya’s politicians broke their promises time and again to deliver justice,” Evenson said. “Scores of Kenyan victims will be wondering who will right the massive wrongs they have suffered.”

ICC Shortcomings
The past practice by the office of the prosecutor for the ICC of short-changing investigations also may have hampered its ability to go to trial, Human Rights Watch said. In decisions in the Kenyatta case, the trial chamber faulted the prosecution’s investigations, as well as its efforts to secure the government’s cooperation. The prosecutor was unable to gather sufficient evidence to send cases against three other defendants in the two Kenya cases to trial.

Over the ICC’s decade in operation, prosecutions against three other people also have been dismissed or led to acquittal due to lack of evidence; the acquittal remains under appeal.

This record has made clear that the office of the prosecutor’s investigative methods need strengthening. The ICC prosecutor, Fatou Bensouda, who has been in office since June 2012, has requested additional resources and announced changes in investigative strategies to improve the performance of the office. She should thoroughly and transparently review the lessons learned from the Kenyatta case to identify where changes are needed in her office, or in the support provided by ICC member countries, Human Rights Watch said.

“The outcome in the Kenyatta case highlights some of the serious challenges the ICC still needs to address if it is to prosecute the world’s most horrendous crimes,” Evenson said.

Lack of Justice in Kenya
Victims participating in the Kenyatta case had made clear through their lawyer that the end of this case would “wholly destroy” the realization of their rights to truth, justice, and reparation. Victims of police shootings and of sexual violence committed during the post-election violence have filed two constitutional cases in the Kenyan high court seeking to compel the government to address these crimes.

Impunity has fuelled cycles of political violence in Kenya, with the people responsible for violence in 1992 and 1997 also escaping justice. Impunity remained a source of tension in the Rift Valley, the epicenter of the 2007-2008 violence, in advance of the March 2013 election, Human Rights Watch research shows.

The ICC prosecutor indicated in a January 2014 filing before the court that she was reviewing her evidence of the criminal responsibility of other people for crimes during the post-election violence, including politicians and businessman of the Kikuyu ethnic group and senior operatives of the Party of National Unity, the party of then-President Mwai Kibaki, whom Kenyatta backed in the disputed December 2007 presidential election.

“With the Kenyatta case closed, the scope of justice the ICC can deliver to Kenya’s victims is greatly reduced,” Evenson said. “The ICC prosecutor should consider whether she has evidence to bring other senior individuals to trial, and there needs to be a return to serious debate nationally and internationally on holding those responsible for crimes committed in Kenya’s post-election violence to account.”