Kenyan Suspects to Remain Free During ICC Trials

Four Kenyan suspects indicted by the International Criminal Court, ICC, are to be allowed to remain at liberty pending trial, and if they remain cooperative, they might also stay out of custody during trial.

However, some legal experts believe that might change if judges in The Hague decide that defendants are breaking the rules that allow them to avoid detention. They point to reports that witnesses have been subjected to threats in Kenya, and concerns that political campaigning by the two defendants running for the Kenyan presidency might turn nasty.

The trials of Deputy Prime Minister Uhuru Kenyatta, former higher education minister William Ruto, cabinet secretary Francis Muthaura, and Kass FM radio presenter Joshua Arap Sang are due to start on April 11 and 12, 2013.

The four are accused of committing crimes against humanity during the violence that erupted in the aftermath of Kenya’s 2007 presidential election, which saw clashes between supporters of the Orange Democratic Movement, ODM, and the Party of National Unity, PNU. The two parties now form a governing coalition.

The charges against the four were confirmed by judges on January 23 this year, while those the ICC prosecutor was seeking against a further two men were rejected,

William Schabas, professor of law at Middlesex University, explained why the four had been allowed to remain at liberty rather than being transferred to the the United Nations detention unit in The Hague.

“Release during trial is authorised rather exceptionally by international criminal tribunals when the accused person has surrendered to the court, cooperated with it, and has a stable residence in a jurisdiction that is capable of making an arrest should the person become non-cooperative,” he said. “I think all of this is present in the Kenya cases.”

The defendants’ cooperation with the ICC will be key to whether they remain free in the run-up to and during trial proceedings. Should trial judges decide that the situation has changed, they can alter the terms of the summonses issued in March 2011, which requires the suspects to appear in The Hague whenever requested to do so.

So far, all four have cooperated, and hence they remain at liberty and are free to travel.

During their initial appearance in court in April 2011, pre-trial judges imposed a set of conditions on them, which included avoiding all contact with victims of the post-election violence or with witnesses; refraining from obstructing or interfering with the attendance or testimony of a witness; and not interfering with the prosecution’s investigation.

“It is for [judges] to monitor whether there are breaches [of the summons conditions],” Lorraine Smith of the International Bar Association in The Hague, said. “Failure to comply with these conditions could cause the judges to issue a warrant of arrest.”

An arrest warrant can come at any point in proceedings – ahead of the trial or during it.

“If there are reasonable grounds to believe that they may obstruct or endanger the investigations or court proceedings, or to prevent commission of a crime, warrants of arrest can be issued. Interference with victims and witnesses could be seen as obstructing court proceedings,” Smith said.

At a status conference at the ICC held on June 11-12, the prosecution raised concerns about threats to its witnesses and said it was important for the court to ensure their protection.

Prosecutors did not indicate who was behind the intimidations, and there are no allegations that threats have come directly from the defendants.

“I am confident that if there was the slightest suggestion that any of the accused did anything to compromise the safety and security of witnesses, the release would be revoked and they would be detained in The Hague,” Schabas said.

Suspects with high political ambitions

One of the unusual aspects of the Kenyan trials at the ICC is that two of the four defendants – Kenyatta and Ruto – are hoping to become their country’s next president.

This week’s announcement of April 11-12 trial dates leaves both men free to contest an election set for March 4, 2013, a month before proceedings get under way.

Political turbulence during the election campaign period, and the possible behaviour of either defendant if elected president, could affect their relationship with the ICC and prompt judges to issue arrest warrants.

Ruto and Kenyatta both command a huge following, and recently registered their own political parties.

Thousands of people turned out on May 20 when Kenyatta launched his National Alliance party in Nairobi. Ruto had already launched his United Republican Party in January to huge acclaim.

With a recent history of election-related communal violence, all eyes will be on the candidates’ grassroots supporters.

James Gondi, director of the International Centre for Transitional Justice in Kenya, is concerned that Ruto and Kenyatta have been electioneering in ways that might incite communities against one another.

“This is serious,”Gondi said. “The two are engaged in political sideshows – prayer rallies and ethnic meetings. They are designed to galvanise ethnic bloc, perhaps even to renew violence in the event that the court reaches the conclusion that these persons are guilty. These are dangerous developments. We ought to be concerned.”

Both Kenyatta and Ruto have denied using rallies to incite violence. (See Fears of Tension Grow in Kenya.)

Even so, Gondi believes there is no reason for the court to issue arrest warrants as long as Kenya upholds its legal duty to cooperate with the ICC.

Esther Waweru, a programme officer for legal affairs at the Kenya Human Rights Commission, is concerned about the negative groundswell that would follow a trial judgement against either man.

“When those things [you wanted] do not happen and you have a following such as they have, then unfortunately that may spur violence,” Waweru said.

Despite the cooperative behaviour of the Kenyan state as well as all four defendants so far, some experts say the mood might change once the trial starts.

Previous efforts by the Nairobi government to have the trials thrown out by the ICC, or transferred back to Kenya, have led to concerns about the government’s willingness to stand by proceedings once they actually start.

George Kegoro, executive director of the International Commission of Jurists in Kenya, suspects that the presidential bids by Kenyatta and Ruto are a strategy to block continued government cooperation with the ICC.

“Asking elections to be held before trials is another way of saying, ‘give us a chance to become president where we will be in a position to decide whether Kenya cooperates [with the ICC] or not’,” Kegoro said. “Obviously, [what they want] is to ensure cooperation does not happen. They have gone about making themselves larger than life… even if Kenya wanted to cooperate, they want to make it not happen.”

Both Ruto and Kenyatta have argued that, if elected president, they would lead Kenya in a process of healing and reconciliation. They have portrayed themselves as peacemakers who have never sought to divide the Kenyan people.

Kenya’s minister for justice, cohesion and constitutional affairs, Eugene Wamalwa, this week, reiterated that the government was supportive of the ICC process.

“ICC cases are a judicial process that should not be politicised and we should let the law take its course for justice to be done for both the victims and the accused,” he said.

Judie Kaberia is an IWPR-trained reporter in Nairobi.