Kenya’s President Called to The Hague with ICC Case at ‘Critical Juncture’

When Kenya’s President Uhuru Muigai Kenyatta shows up at The Hague he will become the first sitting head of state to appear before the International Criminal Court (ICC) as an accused person (Kenyatta attended his pretrial hearing at the ICC in September, 2011, but at that time he was still deputy prime minister).

Kenyatta has been called to The Hague for a status conference—a private meeting between the judges, the prosecution and the defense to consider the state of the case. In deciding to postpone the trial opening originally scheduled for October 7, and to schedule the status conference instead, Trial Chamber V(b) noted that the case had reached a “critical juncture.” This is also one of the reasons the chamber gave in its September 30 decision for insisting on Kenyatta’s presence, despite a defense request that he be excused from attending court.

The gravity of the moment is reflected in the central question that will be before the judges on Tuesday and Wednesday: should the chamber indefinitely adjourn the trial, as requested by the prosecution, or terminate it, as Kenyatta’s lawyers have asked?

Both the defense and prosecution agree on one thing: the prosecution’s evidence does not meet the “beyond reasonable doubt” threshold necessary to prove the allegations against Kenyatta. Each side, however, has different reasons for reaching this conclusion.

However, judges will not be deciding on whether the evidentiary threshold has been met by the prosecution when they hear submissions between October 7 and October 8. In different decisions Trial Chamber V(b) and its predecessor, Trial Chamber V, have emphasized that judges can only determine the strength or quality of any evidence once a trial has taken place.

Instead, the chamber will be seeking clarity on the progress of implementing its decision of July 29 this year, which ordered the Kenyan government to provide the prosecution with eight categories of records relating to Kenyatta or companies and third parties associated with him. That decision followed an earlier one made in March in which the chamber required the Kenyan government and prosecution to meet and negotiate how to make available those records and then report to the chamber every two months.

In the July 29 decision, the judges did not set any reporting conditions, so the status conference on Tuesday will be the first time since that decision that the chamber will be hearing jointly from both sides. The prosecution has said these records will determine whether the prosecution will persevere with the case or withdraw the charges against Kenyatta.

Before this latest phase of the Kenyatta case, his lawyers had applied three times to have the case terminated or have the proceedings permanently suspended. In March last year, Kenyatta’s defense team asked the chamber to terminate the case. The judges at the time held that terminating the case was not the appropriate remedy to the issues Kenyatta’s lawyers raised. At the time, Kenyatta’s lawyers said that the withdrawal of a key prosecution witness and the prosecution’s delayed disclosure of evidence were grounds for terminating the case. Trial Chamber V disagreed and instead gave Kenyatta’s lawyers more time to prepare their defense.

In January this year, Kenyatta’s lawyers renewed their request for the case against their client to be terminated; at that time they cited a prosecution statement to the court that the current evidence against Kenyatta did not meet the beyond reasonable doubt threshold required by the ICC. Trial Chamber V(b) declined to grant that request. The chamber pointed out that the prosecution had yet to receive records that were requested from the Kenyan government in April 2012; it concluded that this matter needed to be resolved first, before any decision on the request to terminate the case could be taken. In that decision made in March this year, the chamber left open the issue of whether to refer Kenya to the ICC membership for failure to cooperate with the court.

Kenyatta’s lawyers also applied to the chamber to permanently suspend the case or issue a permanent stay of proceedings in October, 2013. They argued then that a witness, Witness 118, and an intermediary for the prosecution had sought to influence a group of 10 prosecution witnesses to make up evidence against Kenyatta. In that application, they also argued that another prosecution witness, Witness 12, had solicited money to change his evidence in favor of Kenyatta. The judges concluded that issuing a permanent stay of proceedings was an extreme measure to be taken to protect the rights of an accused person to a fair trial. The chamber said that was not the situation in the Kenyatta case.

The judges also concluded that a lot of what the defense said about prosecution witnesses could only be tested in a trial process. They gave an example of audio recordings Witness 12 made on the prosecution’s instruction. The judges noted that the defense and prosecution interpreted differently the translation of those recordings, and those interpretations, the judges said, could only be best tested in a trial.

Kenyatta’s trial has been postponed five times now. His lawyers have sought to halt the proceedings at least three times. These factors cumulatively raise the question of an accused person’s right to a fair and expeditious trial, as provided for in the ICC’s fundamental law, the Rome Statute. These considerations will also be on the minds of the judges of Trial Chamber V(b) once they rise at the end of the second status conference next week to go and reach a decision on whether to adjourn or terminate the trial.

The victims of the bloodshed that followed the December 2007 presidential election who are yet to receive justice will also surely be taken into consideration. This is the reason why the Kenyan cases are before the ICC in the first place.

As the chamber said, the case has reached a “critical juncture.”

20 Comments

  1. I pity the victims. The real culprits who engineered the bloodshed have been left free while uhuruto have been sacrificed for political reasons.The west have vowed to use all means to make the two guilt but so far, they have only succeeded in disaproving themselves. The Kenyan cases have already put the international criminal court at an akward position and will be difficult for this court to redeem its reputation. I congratulate President Kenyatta for his bold decision to attend the status conference.

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  2. it is mandatory that his execellency our president uhuru muigai kenyatta to attend his status conference as this would show that he is really commited and ready to co-operate with ICC .should his case is to terminate he must show cooperation with ICC.We have confident that if his allegation are not true then he is innocent and have no case and viceversa we only leave this with icc

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    1. Impunity is breaking the law with no /little regard to the consequences, including refusal to obey summons to be held to account thereto.

      Far from your observations, Kenya’s leadership has so far opted to play by the ICC rules.

      You may need to rephrase your comments in view of that.

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    2. Kenya as a country is not on trial in the ICC and thus its size doesnt matter in this case. The “mighty” ICC as you call it, is governed by its own legal statutes and so I dont expect it to act unjustly just because they are “vexed”. Let each party prove their case and judgement be made using factual evidence and not mere emotions. My grandmother lost everything in the R.V, escaping bearely with her life, it was very sad. We asked her wether she knew her attackers, she didnt, but she heard that it was so and so who planned the attacks. Putting a face on the “so and so” is not an easy task. To avoid baise judgement only real evidence be used, the hearsay may point to the wrong direction.

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    3. Wait a minute your grandparents died in un unknown location. You have either reported this wrongly or I mis read your post. How can you declare people dead when you dont know where they went. Well its natural to desire justice, why dont you present real evidence against the accused instead of being just emotional on this matter or relying on hearsay. My grandma escaped narrowly with her life during the PEV but unfortunately she has no real evidence who plannwd the attack apart from the information she gathers from ” what people are saying”.

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  3. While i agree the case of PEV before the ICC is a touchy issue as the victims thirstly need justice to be done,i also agree the accused person in this regard the sitting Kenyan President likewise needs justice to be accorded him.but even more sensitively,the rule of the law MUST not be compromised simply because justice has to be found at last.
    Yes,the victims needs justice,but this justice should not be forced into someone who the law cannot firmly lay its grimse on.i mean gultness cannot and should not be forced on a person where the law has clearly shown non-conformity.for example in president Kenyattas case, a reasonable doubt has already infiltrated the case and even publicly confirmed by the prosecutor when she said the evidence she has does not meet the threshhold standards that can sustain the kenyattas case at ICC.
    Then if the evidence is not able to sustain or more precisely cannot win a case,then this becomes a clear indication that the evidence available is not linking the accused person to the alleged crime. A fair court that is purely after seeking justice will without further waisting time ask the prosecution to appologise and release the mistakenly implicated person.
    But the court cannot continue holding the person because the prosecutor is asking more time to look for an evidence that will prove the accused person guilty.by granting the prosecution this request,it will show that the motive is to pin down an specifically known individual regardless of the law.in such a situation,innocent people have paid for the crime they never committed while those genuinly guilty are left free.secondly.the prosecution abuses his/her powers as well as biasing the independence judgements of the judges.however unless the judges themselves are a party with the prosercuto to a cospiracy,no fair judge would allow holding a suspect who the law does not find any bit of guiltness for the alleged crime just to help the prosecutor find new evidences.let the Kenyan presidence be release as there has already entered a more than a reasonable doubt in the case invoving him.
    Then the prosecutor can start looking for the committers of the crime afresh.though the victims deserve justice to be done,it should be accorded through the perpetrator(s) that are legally proven guilty by a set law without any slightest reasonable doubt.thats way valid justice will have prevailed.justice is won legally and not by showing mightness between two people.
    Let justice prevail ac per the laid and acceptable legal statutes.

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  4. Enough is enough, the prosecution has been pursuing this case two years before Uhuru was elected as President of Kenya. The has been full cooperation with the OTP. For the OTP’S to now turn its failure on the government is not just!

    If there was any evidence of funding, hypothetically, the case on murder, forceful eviction would still require to be proved… by the OTP’S own admission, this aspect is also not available.

    Justice to the prosecution victims will only be served if the full list of names is revealed, proper investigations are carried out and further culprits are identified. Right now the cases built are built on a summary of PEV events and assumptions…

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  5. There have been too many theatrics in this case. Icc is capable of compeling kenya,which is not uhuru,to provide vital info to help the judges decide whether the otp has met evidentiary threshold or not. Unfortunately,kenyan Ag, gitu muigai, views uhuru as Kenya and therefore otp’s pursuit for justice for kenyan victims is ” a fishing expedition”. More sadly,nobody in kenya is speaking up for the victims. Leaders are now wasting millions of us$ in what they call ‘travelling to the hague to show solidarity for uhuru’. Who,among the fat carts,is standing up fo the victims ?

    Please let uhuru carry his own cross and let the world consider the plight of the victims to ensure that justice is not only done to either side but is seen to be done.

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  6. You get it wrong Billyi. OTP has clearly stated that its evidence doesn’t meet the evidence threshold after five years of investigations. My reading of this is that the investigators did a shoddy job or we have the wrong people in the dock.
    I hope you are Kenyan and witnessed in you area what transpired; and honestly what OTP has presented to us is wide off the mark.
    I understand yur concern for the victims ( excluding pretenders ) but that should not translate punishing the wrong people on flimsy grounds to satisfy them.

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    1. Billy, the AG’s Analogy of ‘fishing expedition’ may be understood this way: when you go fishing you chance on any course you take; whichever direction you are not assured of a catch.

      In prosecuting a case, you arm yourself with sufficient evidence so that you produce the necessary proof at every twist and turn to a logical conclusion.This is how a case is prosecuted if I am not wrong.

      To request for information or evidence midstream from a third party then is akin to a fishing expedition. I believe tend to agree with that.

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  7. It seven years after PEV no evidence to sustain the case. Is there any body powerful influencing the decision of judges? I think icc is NOT an indipendent court. Wish the president well bt if it is postponed for 10 years, just do away with the court. I dont see any justice.

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  8. I dnt think the president has a case there bt its good that he has reported to the icc an only dat shows that his innocent,And i think these time the case will jst be terminated,Depending on wht he has just done he is a president of his own kind,There is no president in africa who cn hand over power to his vise for even an hour,Think my president museven is watching these

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    1. As a christian woman i can not witness that Uhuru is innocent and has no case. It is true it is too long since this case started and innocent Kenyan citizen died. Who knows that he did not participate in killing of 1200 Kenyan? It is only God in heaven.It is too bad to say that Uhuru is innocent and has no case and that the ICC should stop this case.. I ask all those who provide comments to be very carful when speaking about this case. On the other hand i advice the ICC to be careful when handleing most of african cases if they dont have enough evidence they better drop Uhuru case. I beleive that if Uhuru partcipated in this issue God himself will judge. This is my advice

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  9. These cases should just b terminated since justice delayed is justice denied.

    The prosecution has only so far proved all accused persons to be not guilty. i think personally they r trying to buy time for the sake of the victims they told they represent. n further all kenyans r aware we need our own real solutions to our social systems than holding some people accountable for whatever divides us.

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  10. I’m still weeping. My grand parents were killed and displaced by Kenyatta family from our ancestral land in Thika to an unknown place in Rift Valley.
    Later my dad and unlces were burnt alive in Rift Valley during 2008 PEV.
    The only time I’ll be free from torture and observe justice to the entire kenyans is when these culprits are locked up completely.

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    1. Which culprits are you referring to Rose?

      You sound bitter for reasons which apparently do not relate to the case at hand, which point to the fact that your comments are inspired and driven by other motives, a pointer that you may have ‘covered’ your real identity.

      Emotional exchange of ‘we’ vs ‘them’ should not be permitted to dictate a discourse such as this one.

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  11. The imperialists are failing; they should have worked with Kenya to have the trial here at home. But because the ICC is just a puppet of the unseen interests, if it fails its owners will have failed. They are not interested in justice so let them not bring the issue of PEV victims; let them work with Kenya to have them compensated by Kenya.

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