Experts Say OTP Did Not Follow the Evidence in Collapsed Kenya Cases

International Criminal Court (ICC) prosecutor Fatou Bensouda has made public the summary of an external experts’ report of how the Office of the Prosecutor (OTP) handled one of the most high profile cases brought before the ICC to date.

She made the report summary public on Tuesday, November 26, ahead of this year’s annual meeting of states parties to the court.

Together with the summary, Bensouda made public her response to the experts’ report. Her 20-page statement included what Bensouda said were the lessons the OTP learned and applied from the external experts’ review of the Kenya cases.

The conclusions in the external experts’ report portrayed the OTP in a very unfavorable light. The experts said the ICC’s first prosecutor micro-managed the OTP to the detriment of prosecutors developing the best cases possible, if that is where the evidence led them. The experts also said all concerned gravely underestimated potential threats to witnesses and delayed in taking measures to mitigate against such threats.

Bensouda is convinced the OTP has learned its lesson and has changed for the better, presenting better cases for prosecution. Defense lawyer Steven Kay says, to use a phrase, “I told you so.” Kay was the lead lawyer representing Kenya’s President Uhuru Kenyatta when he faced charges at the ICC. Luis Moreno Ocampo, the first ICC prosecutor who oversaw the Kenya cases up to the pre-trial phase, says he faced bias from the experts against him because they never interviewed him or sought his views on their findings.

“The effectiveness of the investigations and prosecutions [in the Kenya cases] was significantly undermined by Prosecutor 1’s ‘decision over assessment’ approach to the cases, and his target-based approach to investigation and charging rather than an evidence-based approach. These approaches forced investigators and prosecutors to try to fit the evidence into cases against pre-determined targets rather than determining targets based on the evidence,” said the experts in their summary. The Prosecutor 1 they referred to is Moreno Ocampo.

In his response, dated November 25, Moreno Ocampo said:

The experts instead [of] focusing on the Kenya’s authorities interfering [with] witnesses, challenged the policy to prosecute “those most responsible” (or “high level accused”) in accordance with the evidence collected, adopted by the Office of the Prosecutor in a Policy Paper made public on September 2003. The Kenya cases just applied such a policy. The targets were suggested by the investigators and prosecutors of the Kenya’s team. Ex Com reviewed the proposal and approved the names.

The Ex Com he referred to is the OTP’s executive committee made up of the prosecutor, the deputy prosecutor (Bensouda at the time), and the heads of divisions.

Kay said in a November 28 statement that the case against Kenyatta was based on “hearsay, rumour and gossip, and was without proper foundation.”

“The OTP’s failure to investigate the truth, as it was required to under Article 54 of the Rome Statute, led it to construct and pursue a case against him that relied upon witnesses that it knew – or ought to have known – were proven liars,” said Kay.

He noted there is a paragraph in the experts’ summary that “reveals an effective admission that the case against President Kenyatta would never have prevailed and was not dropped due to witness interference. This is a startling admission that undoes the attempts of the OTP to blame others for what was a doomed case from the beginning.”

Kenya’s ambassador to the Netherlands, Lawrence Lenayapa, said the experts’ report confirmed [pdf] “views widely held by Kenya” that there was a problem with how the Kenya cases had been investigated and prosecuted.

“Kenya is deeply concerned with the conclusion that the Office of the Prosecutor adopted a target based as opposed to an evidence-driven approach in bringing charges against the accused,” said Lenayapa in speech he made during the just-concluded annual meeting of ICC members. He called on Bensouda to release the entire report “in the spirit of transparency and full disclosure.” The annual meeting of states parties to the ICC took place between from December 2-6 in The Hague.

In her statement when releasing the report, Bensouda said the aim of having external experts look into how the OTP conducted itself was not to look for whom to blame or criticize but to see how the OTP could improve from its experience in the Kenya cases.

“In addition to external factors, including lack of sufficient cooperation, witness tampering and interference, which played their role in the final outcome in the context of the Situation in Kenya, the goal of this internal initiative was to assess the performance of the Office [of the Prosecutor] itself, and to draw the appropriate lessons and to make changes where necessary.

“I am encouraged by the fact that the Office had already addressed most of the recommended changes in response to our experience of the Kenya situation even prior to the receipt of the independent external expert report,” said Bensouda.

The Kenya cases are the highest profile the OTP has prosecuted to date because they were the first involving serving members of government. The cases also involved high-level diplomacy up to the United Nations Security Council. When the cases began, they involved a deputy prime minister, which was the office Kenyatta held when the OTP asked a pre-trial chamber to confirm charges against six suspects. Other serving government officials at the time included the police chief and Kenya’s top bureaucrat.

By the time judges confirmed charges against four of the six suspects and trial dates set, Kenyatta had become president. Another person against whom charges had been confirmed, William Ruto, had become deputy president. In October 2013, a month after the trial against Ruto and former radio journalist Joshua arap Sang began, the African Union held a summit on the ICC that led to a seven-person panel of African foreign ministers being delegated to lobby the United Nations Security Council to vote to defer the Kenya cases.

Kenyatta was to face trial with the then top Kenyan bureaucrat, Francis Muthaura. In March 2013, the OTP withdrew the charges against Muthaura because there was only one witness who had made allegations that directly implicated him, and on review of his evidence, the OTP determined that witness was no longer credible. In December 2014, the OTP withdrew its charges against Kenyatta as well because it lacked the evidence necessary to go forward. In April 2016, Trial Chamber V(a) in a 2-1 majority decision terminated the case against Ruto and Sang saying they did not need to present a defense. The majority disagreed on whether to declare a mistrial; with the then Presiding Judge Chile Eboe-Osuji saying he preferred a declaration of a mistrial because the proceedings had been tainted by witness interference and intimidation.

“From the beginning there were credibility issues with the witnesses on whom the OTP would rely [in the Kenya cases]. Most of these witnesses were ‘insiders.’ Such witnesses must be viewed with great caution and independent corroboration becomes even more important. Some of the witnesses had been relocated to the same locations for extended periods of time, raising the possibility that they had talked among themselves and tainted each other’s evidence; this also made independent verification more important,” said the external experts.

“There were also significant security concerns in relation to these witnesses. From early on the suspects/accused engaged in a pervasive – and successful – campaign of direct and indirect witness interference. Witnesses or those suspected of being witnesses residing inside or outside of Kenya were directly contacted and intimidated, bribed, perhaps even physically harmed or killed.

“The relatives of these witnesses were also contacted and intimidated or pressured to convince the witnesses to refuse to cooperate with the OTP. As a result, many individuals on whom the OTP planned to rely as witnesses either recanted their earlier statements or refused to appear before the Court. Despite circumstances which alerted the OTP to the very real potential for witness interference and the interference itself, the OTP was dilatory in robustly responding to the interference, e.g., delaying comprehensive Article 70 investigations until too late in the process,” wrote the experts.

In his response Moreno Ocampo said the experts’ report mentioned what he thought was the problem with the Kenya cases, ““the high level accused” were “powerful, sophisticated, well-funded and organized” and “willing to engage in concerted propaganda campaigns and pervasive witness interference.”

In response to whether the OTP had been “dilatory” in pursuing cases against individuals who were suspected to have intimidated or bribed witnesses, Moreno Ocampo said he understood that the experts were not informed that during his tenure, his office requested to arrest individuals alleged to have been involved in witness interference.

“I cannot make a judgement on what happened after the end of my tenure in June 2012 and the reasons not to initiate proceedings under Article 70 during the trial time,” said Moreno Ocampo.

In relation to investigations into witness interference in the Kenya cases, the ICC issued an arrest warrant for Walter Barasa in 2013 and Paul Gicheru and Philip Kipkoech Bett in 2015. Those warrants remain outstanding.

In her statement, Bensouda said the OTP has changed how the OTP manages cases by simplifying decision-making. She said this has happened with each case having an integrated team led by a senior trial lawyer. Bensouda said this allowed for better decision-making compared with the previous structure used to manage cases. The previous structure, she explained, consisted of a joint team made up of representatives of different units or divisions in the OTP that had to make decisions by consensus.

The confidence Bensouda expresses in the OTP having learned the lessons of the Kenya cases seems to be belied by the majority decision to acquit former Ivorian president Laurent Gbagbo and former cabinet minister Charles Blé Goude. Confirmation of charges hearings in the then separate cases of Gbagbo and Blé Goude were held in 2013 and 2014, after Moreno Ocampo had left the OTP.

Presiding Judge Cuno Tarfusser and Judge Geoffrey Henderson said in their majority decision that the OTP did not follow an evidence-based approach in its case in the combined trial of Gbagbo and Blé Goude. The judges said this is one of the reasons they acquitted Gbagbo and Blé Goude before they put up their defense.

Tarfusser detailed his analysis of the trial in his concurring opinion and Henderson wrote the majority judgement to acquit Gbagbo and Blé Goude. Their analyses seem to echo what the experts’ said about the Kenya cases being target-driven rather than evidence-driven.

Judge Olga Herrera Carbuccia dissented from the majority in the Gbagbo and Blé Goude trial, arguing the two should have been asked to present their defense. Carbuccia said the prosecution presented “sufficient evidence, if accepted, on which a reasonable Trial Chamber could convict the accused.” The OTP has appealed the acquittal of Gbagbo and Blé Goude.

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