Today, Trial Chamber V(b) at the International Criminal Court (ICC) has said it will not order any further adjournment of the case against Kenyan President Uhuru Muigai Kenyatta as the prosecution had requested nor will it terminate it as the defense had asked.
In a unanimous decision, Judges Kuniko Ozaki, Robert Fremr, and Geoffrey Henderson said they were not going to set a new trial date. They instead ordered ICC Prosecutor Fatou Bensouda to give notice within one week whether she will withdraw the charges against Kenyatta. Alternatively, the judges said that Bensouda can give notice within one week’s time that the evidence collected has improved enough that she is ready to proceed to trial.
The chamber observed that both the prosecution’s and defense’s applications argued that their requests were based on the exceptional circumstances of the case, but the judges said the applications had limited legal arguments.
“Given the seriousness of the remedies requested, it should have been incumbent upon the parties to thoroughly support those requests, by reference not just to the factual circumstances but also to applicable legal standards, principles and authorities,” the judges said.
Kenyatta is charged with five counts of crimes against humanity allegedly committed during the violence that followed the December 2007 presidential elections. At the time, Kenyatta was not a presidential candidate but was a key campaigner for incumbent President Mwai Kibaki, who was seeking reelection. The charges against him include murder, deportation or forcible transfer, rape, persecution, and other inhumane acts. The start of his trial has been postponed five times since the charges against him were confirmed in January 2012.
The previous postponements influenced the chamber’s decision, with the judges saying that any further adjournment would have an impact on the fair trial rights of Kenyatta. The judges also said that the delay in the prosecution receiving eight categories of documents from the Kenyan government was not sufficient grounds to delay the trial further.
In the September 5, 2014 request to indefinitely adjourn the Kenyatta trial, the prosecution said that its evidence is “insufficient to prove Mr. Uhuru Kenyatta’s alleged criminal responsibility beyond reasonable doubt.” The prosecution, however, blamed the situation on the Kenyan Government’s failure to comply with its obligations under the Rome Statute and argued that withdrawing charges would undermine the March 2014 trial chamber decision ordering the Kenyan government to fulfill its cooperation obligations. The prosecution also said that Kenyatta’s position as “head of a government that has so far failed to comply with its obligations to the Court” makes him ultimately responsible for that failure.
The defense for Kenyatta argued that any further adjournment of the trial would be a violation of accused’s fair trial rights, particularly the right to be tried without undue delay. The defense requested judges to terminate the proceedings and that a verdict of acquittal be entered by the trial chamber, even if the trial never begins.
Trial Chamber V(b) declined to adjourn the case because it said that would be the same as issuing a permanent or unconditional stay of proceedings, which it said was, “an exceptional remedy to be applied as a last resort.” The chamber also noted that its decision to decline to further adjourn the case in the present circumstances would almost lead to the proceedings against Kenyatta ending.
Judges Ozaki, Fremr, and Henderson noted that the prosecution had in its September 2014 application indicated that the evidence it had could not pass the threshold of beyond reasonable doubt.
“The Chamber notes that the insufficiency of the current evidence is a matter of admission on the part of the Prosecution, rather than being something that the Chamber is in a position to take an independent view on at this stage,” the judges wrote.
“Nonetheless, in the light of such admission and the Chamber’s denial of the Further Adjournment Request, the Chamber is of the view that the appropriate course of action would now be the prompt withdrawal of charges,” they continued.
They did note that if the prosecution were to withdraw the charges, this would not stop it from filing new charges against Kenyatta at a later date if it got sufficient evidence to support such charges. The judges also declined to terminate the case or enter a verdict on the charges, as requested by the defense.
The judges also said that in making their decision they kept in mind the interests of victims in this case, but they had to balance those with other interests of justice.
“While the victims’ legitimate interests include seeing those responsible for the crimes committed being held accountable, the Chamber does not consider that, in light of the presumption of innocence, it would be in the interests of justice, or the interests of the victims, for the current proceedings to be continued on the speculative basis which has been presented,” the judges said.
Separately, Trial Chamber V(b) also declined the prosecution’s request to refer Kenya to the ICC’s Assembly of State Parties. International Justice Monitor will have more on this tomorrow.