Three Issues that Remain Unsolved Since the Collapse of ICC Cases

ICC’s Senior Trial Lawyer Anton Steynberg expressed the regret that the court’s prosecution had over the collapse of the Kenyan cases.

Speaking in Arusha, Steynberg blamed lapses in prosecutorial strategy as the cause for the collapse of the cases. However, the court hoped that a future Kenya regime will cooperate with it to revive the cases.

Steynberg blamed the collapse of the ICC cases on two things:

  • the “direct attack” on prosecution witnesses; and
  • the failure by the State to cooperate genuinely with the prosecution.

Steynberg admited that the Office of the Prosecution (OTP) adopted new policies regarding investigations based on experiences from the Kenyan case.

However, the narrative in the Kenyan political circles was different with regard to the cases. Supporters of the suspects claimed that someone ‘fixed’ them. Such an example is when Gatundu South MP Moses Kuria allegedly blamed Martha Karua and himself as some of Ruto’s ‘fixers’.

Despite the collapse of the cases, the International Criminal Court (ICC) said it would revive them if new evidence came along. When the cases for Ruto and Sang collapsed, the court refused to exonerate them, rather terming the cases a ‘mistrial’.

Yet,  ICC’s revived interest in the Kenyan cases rattled several people in government. One of those people was Garissa MP Aden Duale. He said that he read mischief in the new move. He cited the move as “gross misconduct” in the actions of certain persons in the ICC.

Duale also blamed “personal vendetta” or a “despicable and unjustifiable interference in Kenya’s domestic politics” as a motive. As a result, Duale cautioned Kenyans. He told them to “unite against these attempts by foreign meddlers to influence their votes”.

However, with these sentiments, we all know where his interests lie.

Some issues remain unresolved after collapse of ICC cases

Some issues about the ICC cases remain unresolved. These issues are about interference of witnesses, including witness bribery, witness intimidation, and witness disappearances.

Witness bribery

Issues of witness bribery became popular with Uhuru Kenyatta, William Ruto and their cronies. They accused the civil society of using bribes to procure witnesses to testify against them at The Hague based court. They also accused Raila Odinga as being among those who fixed Ruto after Ruto and Raila fell out.

Issues of bribery also arose when people incriminated Uhuru Kenyatta and William Ruto. They accused them of using their cronies to bribe ICC Prosecution witnesses to recant the evidence against them. They would approach the witnesses and allegedly entice them with large amounts of money. The media reports numerous stories of witnesses having enriched themselves from these bribes.

Witness intimidation

The ICC prosecution cited this issue often as a reason why its witnesses recanted their evidence. They feared for their lives and those of their families. Apparently, this situation became worse when Uhuru Kenyatta and William Ruto won the presidency.

The witnesses reported receiving death threats from ‘unknown’ sources. The sources would threaten them to recant their evidence or withdraw as prosecution witnesses. Failure to do so would result in grave consequences. Many prosecution witnesses withdrew in the process. Other witnesses withdrew for fear of the newly found powerful position of Uhuru and Ruto in the presidency.

Witness disappearance

The ICC prosecution also raised alarm concerning witness disappearance. The prosecution identified cases of witnesses disappearing through kidnapping. Many of them turned up dead and others disappeared completely. This caused a lot agony and anguish to their families.

The ICC blamed witness disappearances indirectly on the president, his deputy, and their cronies. There are cases where the prosecution could not trace its witnesses when the cases were in session. Others went into hiding fearing for their lives due to intimidation and harassment.

We pretend to forget and move on

We must not forget the plight of the post-election violence victims. Politicians exploited them for political gains. The media forgot about them and absurd stories about politicians take lead.

The interest by the ICC to reopen the cases in the future was evident. After all, ICC admits that when it issued summons against the Ocampo Six, it was a baby. It says it learned from its mistakes. It remains for everyone to see whether it has grown up.

The victims got weary and gave up on ever finding justice. The court failed them, but most of all, the State failed them.

The victims were not only those who suffered directly, but also those who suffered indirectly.

As Kenyan people, we failed them when we pretended that we had forgotten and moved on. Truth is we covered a wound that will soon be ripe and might lead to an event worse than the one we experienced in 2007/08.

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