THE KENYATTA CASE AT THE INTERNATIONAL CRIMINAL COURT

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1 THE KENYATTA CASE AT THE INTERNATIONAL CRIMINAL COURT Search for justice for victims of post-election violence Kenyan President Uhuru Kenyatta is to face trial at the International Criminal Court (ICC), suspected of planning and organizing crimes against humanity during violence that followed Kenya s 2007 presidential election which killed over 1,200 and displaced 600,000. Sign up updates Follow us on Twitter Visit our Kenya webpage The trial was due to open on 5 February However a status conference instead took place to discuss a request by the ICC prosecutor to adjourn the start of the trial for three months following the withdrawal of several key witnesses. See below for more information. Who is Uhuru Kenyatta Kenyatta was elected Kenya s president in March He is the son of Jomo Kenyatta, Kenya's independence leader and first president. He has held various positions in the Kenyan government, including finance minister and deputy prime minister. As a member of the political party of former President Mwai Kibaki, Kenyatta is suspected of planning, financing, and coordinating violence perpetrated against supporters of the opposition Orange Democratic Movement during the post-election violence. What is he charged with? Kenyatta is allegedly criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of: murder (article 7(l)(a)); deportation or forcible transfer (article 7(l)(d)); rape (article 7(l)(g)); persecution (articles 7(l)(h)); and other inhumane acts (article 7(l)(k)). It is alleged that Kenyatta had control over the criminal Mungiki organization and directed it to commit the above crimes in the towns of Kibera, Kisumu, Naivasha, and Nakuru from 30 December 2007 to 16 January Kenyatta, Muthaura and Ali summoned to appear Following the issuance of a summons in March 2011, Kenyatta along with former civil service head Francis Muthaura and former police commissioner Mohammed Hussein Ali made his first appearance before the Pre-Trial Chamber (PTC) II on 8 April Confirmation of charges against Kenyatta and Muthaura

2 On 23 January 2012, PTC II confirmed all the charges against Muthaura and Kenyatta. The confirmation of charges hearing was held between 21 September and 5 October The charges against Ali were not confirmed. Charges against Muthaura withdrawn In March 2013, the prosecutor withdrew the charges against Muthaura, stating that a critical witness recanted a significant part of his evidence and was dropped from the witness list. Many other potential witnesses have reportedly been killed or died, and others were unwilling to testify. The prosecutor also said the Kenyan government had provided only limited cooperation, and had failed to assist in uncovering crucial evidence against Muthaura. Case assigned to Trial Chamber V(b) On 21 May 2013, the ICC Presidency assigned the Kenyatta case to Trial Chamber (TC) V(b), with composed of Judge Ozaki, Judge Fremr and Judge Eboe-Osuji. Withdrawal of more prosecution witnesses On 16 July 2013, the prosecutor notified TC V(b) of the withdrawal of three prosecution witnesses. Two witnesses have informed the prosecutor that they were no longer willing to testify. The testimony of the third witness was deemed no longer necessary by the prosecutor. On 8 January 2013 the Kenya Human Rights Commission filed a request to submit observations to TC V on the disclosure of the identities of prosecution witnesses. TC V rejected the request on 1 February Judges reject challenges to admissibility and jurisdiction of case On 31 March 2011, the Kenyan government filed an application challenging the admissibility of the case against Kenyatta, Ali and Muthaura. It claimed that the country was undergoing a comprehensive legal and judicial reform and intended to investigate and prosecute the cases domestically. PTC II rejected the challenge on 30 May 2011, finding that there were no ongoing domestic proceedings in respect of the three suspects. The Appeals Chamber confirmed this decision on 30 August On 19 September 2011, the defense for Kenyatta and Ali challenged the jurisdiction of the case before the Court. They argued that the level of organization and structure as part of which the crimes were allegedly committed did not reach the required level for crimes against humanity under the Rome Statute. Pre trial judges rejected this challenge on 23 January On 27 April 2011, the Kenyan Section of the International Commission of Jurists (ICJ Kenya) filed a request to submit observations to PTC II on the national prosecutions before Kenyan courts and the admissibility of the case before the Court. PTC II rejected the request on 11 May 2011.

3 New procedure for victims participation On 3 October 2012, TC V set up a new procedure for victims participation in the case against Muthaura and Kenyatta. Only victims who wished to appear in court now needed to submit a written application, while victims who wished to participate in absentia through a common legal representative would be subject to a less rigorous registration procedure. A total of 233 victims were allowed to participate in the proceedings. In November 2012, TC V appointed Fergal Gaynor as the common legal representative for victims in the Kenyatta case. On 24 August 2012, the Civil Society Organisation Network (CSO Network) filed a request to submit observations to TC V on victims participation in the proceedings. TC V rejected the request on 13 September On 23 November 2012 Kituo Chia Sheria (Centre for Legal Aid Empowerment) filed observations on victims participation and representation. Judges decide hearings to take place in The Hague During the pre-trial phase, PTC II requested the parties and participants to file observations on the desirability and feasibility of holding the confirmation of charges hearing in Kenya. The participating victims expressed objections to holding the hearing in Kenya. On 10 June 2011, No Peace Without Justice filed a request to submit observations to PTC II on the desirability and feasibility of conducting the confirmation hearing on the Kenyan Territory. The request was rejected. Before the trial phase, the defense for Muthaura filed a requested TC V to hold the trial in Kenya or, alternatively, at the premises of the International Criminal Tribunal for Rwanda in Arusha, Tanzania. It argued that this would minimise the disruption to the public and private lives of the defendants, facilitate investigations and bring justice closer to the Kenyan population. The victims opposed holding the trial in Kenya due to safety concerns and potential interference with the court process, with the majority preferring the trial to be held in The Hague. On 29 July 2013, TC V(b) requested further observations from the participants. This was due to the original request relating to a change in the place of trial having been made by Muthaura, who was no longer party to the case. The victims again express their wish for the trial to take place in The Hague. The prosecution was also opposed, arguing that a change would be against the interests of justice and prosecution witnesses. On 15 July 2013, in the context of the case against Deputy Kenyan President William Ruto and former broadcaster Joshua Sang case, the plenary of judges of the Court rejectedthe request to hold the hearings in Kenya or Tanzania. The judges stated that they took into consideration the security and cost of holding proceedings outside The Hague, the potential impact on victims and

4 witnesses, as well as the potential impact on the perception of the Court. On 6 September 2013, the Presidency dismissed a defense request to vacate the plenary decision. Use of video technology On 18 October 2013, TC V(b) rejected Kenyatta s requests (one and two) for authorization to be participate at trial via video link technology. The judges said that providing video link facilities would require a considerable amount of Court resources, and hence would only be considered if there was substantial justification. The Legal Representative for Victims and prosecution (on one and two occasions) had objected to the request, while the Registry was asked to submit its observations. Judges decide Kenyatta must be present at trial as a general rule On 26 November 2013, a majority of Trial Chamber V(b) ruled that as a general rule Kenyatta must be present at trial. It also ruled that any future requests for excusal would have to be considered on a case by case basis. The ruling reconsidered the Chamber s own decision from October 2013 which excused Kenyatta from continuous presence at trial to allow him perform his duties as president of Kenya. The prosecution had asked the Chamber to reconsider the excusal after the Appeals Chamber had decided, in the context of the Ruto/Sang case, that absence from trial is only permissible under exceptional circumstances. ASP adopts new rules on presence of accused at trial In November 2013, the ICC s governing body - the Assembly of States Parties (ASP) - adopted changes to the Court s rules to allow those mandated to fulfill "extraordinary public duties at the highest national level" to request excusal from presence at trial and to be represented by their legal counsel. However, it would be for ICC trial judges to decide on any request taking into account a number of factors, including the interests of justice and the nature of the hearing in question. The rule would only apply for persons under summons to appear. The possibility of allowing the accused to appear via video in the courtroom was also part of this rule change. Other rule changes adopted at the Assembly concerned allowing the use of recorded testimony in proceedings, and giving trial judges the power to decide on holding hearings outside The Hague. The Coalition has questioned the process that led to the changes. Hearings to decide future of trial On 5 February, a status conference took place before Trial Chamber V(b) to discuss a prosecution request to adjourn to start of the trial, prompted by the withdrawal of key prosecution witnesses and a consequent lack of sufficient evidence to substantiate the charges against the Kenyan president. The prosecution also asked the judges to rule on its allegations of non-cooperation on the part the Kenyan government, which it said was withholding Kenyatta's phone and financial records that could contain evidence key to its case. It called for a further adjournment of proceedings

5 until the government complied with its requests. The defense opposed the granting of the adjournment request, refuted allegations of non-cooperation, and asked the judges to terminate the case on the basis that the prosecution does not have sufficient evidence. Legal Representative for Victims Fergal Gaynor stated that Kenyatta and the Kenyan government had consistently obstructed the proceedings by propagating anti-icc rhetoric, exerting pressure on parties that could disclose evidence and launching a high-level diplomatic campaign to stop the proceedings. He also asked the judges to consider, bearing in mind the need for justice for victims of all ethnic groups in Kenya, the repercussions of terminating the Kenyatta case while the Ruto/Sang trial continues. On 13 February, another status conference took place to discuss the prosecution's allegations of non-cooperation. Appearing before the Chamber, Kenyan Attorney General Githu Muigai argued that the Kenyan government is only obliged to cooperate with requests issued by the judges and not those of the OTP. The prosecution stated that this argument was inconsistent with the government's initial response to its requests and asked judges to reject it on the basis that it was contrary to the Rome Statute and would greatly hamper future investigations and prosecutions. Muigai also argued that Kenyatta is not responsible for any finding of non-cooperation, as he had fully discharged his duties as president by appointing independent bodies to carry out international cooperation obligations. He also stated that as the documents requested by the OTP fall under the jurisdiction of independent bodies such as the central bank and private phone companies, a Kenyan high court order would be needed for the government to obtain them. The prosecution opposed these arguments, stating that the government violated its obligations under the Rome Statute by denying the OTP requests and not immediately informing the Chamber of the reasons for their decision. On 30 January 2014, the Presidency reconstituted Trial Chamber V(b) in the Kenyatta case, with Judge Geoffrey A. Henderson replacing Judge Chile Eboe-Osuji.