Two Kenyan Suspects Off The Hook?

Although the prosecutor of the International Criminal Court, ICC, says he will continue investigating two top Kenyan officials, observers doubt these cases will be revived and instead expect the court to focus on four other suspects who are due to stand trial.

In January, ICC judges declined to confirm charges lodged by Prosecutor Luis Moreno Ocampo against the former head of the Kenyan police, Hussein Ali, and ex-minister of industrialisation Henry Kosgey. They ruled that the Office of the Prosecutor, OTP, had failed to present enough evidence to merit sending the cases to trial.

Judges confirmed charges against four other suspects – deputy prime minister, Uhuru Kenyatta, former civil service head Francis Muthaura, former higher education minister William Ruto and radio presenter Joshua Arap Sang.

More than 1,300 people were killed and 600,000 were forcibly displaced in the fighting which followed a disputed presidential election in December 2007.

The OTP investigated both sides in the conflict, and divided the six suspects accordingly into two cases – Ruto, Arap Sang and Kosgey representing the Orange Democratic Movement, ODM; and Muthaura, Kenyatta, and Hussein Ali from the Party of National Unity, PNU. The final confirmation of charges means one suspect is dropped from each case.

The OTP had accused Kosgey of being, indirectly, a perpetrator of murder, deportation and forcible population transfer as Kenya descended into chaos in 2007-08. Ali was charged for orchestrating similar crimes, as well as for rape.

In their decision, the judges ruled that the prosecutor relied on evidence from just one anonymous witness about Kosgey's alleged role in the violence. They also rejected the prosecutor’s assertion that Ali instructed police officers not to obstruct the movement of a gang known as the “Mungiki” and PNU youth supporters into the Rift Valley region, in preparation for attacks on supporters of their political foe, the ODM.

Failure to confirm charges ahead of an ICC trial does not amount to an acquittal, as the door is left open for the prosecutor to reinvestigate suspects and submit further evidence in support of the charges.

Following the judges’ decision to drop the two cases, Ocampo insisted that his office would “keep investigating Kosgey and the activities of the police”.

However, legal experts have raised doubts as to whether this will happen.

Godfrey Musila, an international law expert and director of the Nairobi-based African Centre for International Legal and Policy Research, is convinced that, as far as the ICC is concerned, the cases are as good as closed.

“The question of continuing investigations [into Ali and Kosgey] is nothing more than a strategic formulation of the prosecution to pander to the supporters of the court and keep the suspects in suspense,” Musila said. “As far as I am concerned, it will not happen. He always says it but I do not think he means it. They [Ali and Kosgey] might as well just forget about the cases.”

The OTP has a mixed record when it comes to reviving cases rejected by the court’s judges. In the case of Bahr Idriss Abu Garda, a rebel leader in Sudan’s Darfur region, ICC judges failed to confirm charges against him for an attack on African Union peacekeepers. Rather than reviving the case by finding additional evidence against Abu Garda, the prosecutor went on to investigate two other individuals who were subsequently charged with the attack.

The OTP was successful in appealing against the rejection of a genocide charge against Sudanese president Omar al Bashir for atrocities in Darfur. But as Professor Jens Ohlin, an expert in international law at Cornell Law School in New York, points out, external pressure around the Darfur case placed considerable pressure on the OTP to ensure that genocide charges were confirmed. That does not apply so much in the Kenyan cases.

“I don’t think it is absolutely necessary to go ahead and find a way to confirm charges [against Ali and Kosgey], in the same way [Ocampo] was highly motivated to pursue the genocide charges in Darfur,” said Ohlin. “That was considered differently – to talk about genocide in Darfur. That would have been a major failure.”

Ohlin said the ICC “did not take a hit” when the Ali and Kosgey charges were rejected.

One possible approach the OTP might take would be to press ahead with the four existing cases, and then – if evidence against Ali or Kosgey comes to light in the course of the trial – to seek confirmation of charges against them.

“If the evidence emerges later while they are pursuing the other cases, I could certainly see that,” Ohlin said. “Whether that evidence shows up while pursuing the other cases I’m not sure.”

To date, the question of additional charges in ICC cases has mainly revolved around adding extra charges when suspects have already been indicted. The OTP is seeking to add new charges in the case against former Congolese militia leader Bosco Ntaganda, who is still at large. However, in the case of another Congolese paramilitary leader, Thomas Lubanga Dyilo, human rights groups and court observers urged the OTP to add extra charges, particularly in relation to allegations of rape, but without success. Lubanga was convicted in March 2012 on charges of using child soldiers.

Elizabeth Evenson of the advocacy group Human Rights Watch’s international justice programme points out that while the OTP is sometimes prepared to shape cases after initial charges have been brought, matters get a lot more complicated if other suspects have already been sent for trial. She sees it as unlikely that the OTP would try to revive the Ali and Kosgey cases once the four others are on trial.

“The practical delay and challenges this may pose are significant,” she said.

Goran Sluiter, an expert on international law at Amsterdam University, said the OTP would pursue charges against the two only if there was “a good chance” that those cases could be joined to the existing ones.

“But I think it would be a nightmare to have [a further] two Kenya cases later on,” he added. “Otherwise, I think the prosecutor should just cut his losses and leave those two [Ali and Kosgey].”

The fate of further investigations against the two suspects could also depend on whether this would benefit the OTP’s overall legal approach. Expert opinion is divided as to whether removing of Ali and Kosgey from the original group of six suspects deals a blow to the case against the remaining four.

Ocampo has sought to characterise the suspects and their alleged actions as forming part of wider networks which orchestrated the violence. Christine Alai of the International Centre for Transitional Justice in Nairobi says this approach could play an important part in determining whether the OTP takes further action on the Ali and Kosgey cases.

“I am not saying it all hinges on this, but this is an important consideration the prosecution will have to make,” Alai said. “If Ali is missing in the Uhuru-Kenyatta case, what will this mean to the ‘network’? And a similar question must be posed for the Kosgey case, as well.”

In addition, the OTP may feel it is worth investigating Ali and Kosgey further because they were part of a group of six original suspects whittled down from a much larger number of names. In March 2010, the Commission of Inquiry on Post-Election Violence, an international panel set up by the Kenyan government, handed the ICC a sealed envelope containing a list of names of individuals whom it deemed culpable for orchestrating the violence.

“You will remember there was a talk of an envelope which had close to 20 names. But the prosecutor zeroed in on the six, on whom evidence led him to conclude they were most responsible. I want to believe it is evidence which led him to this conclusion,” Alai said.

Other lawyers, however, believe the prosecutor will be able to present evidence against the four suspects without spreading the net wider.

“I believe [the prosecutor] is still continuing to collect evidence and he will bring that evidence to the chamber,” Sluiter said.

A more practical consideration is whether doing more work on the Kosgey and Ali cases would consume too many resources. In recent years, the ICC has been unable to attract enough funding to reflect the number of new investigations on its books.

“I’m sure there can easily be more evidence produced [against Ali and Kosgey]. It is always available,” Sluiter said. “For the prosecutor, the most important thing is to make a policy decision. There is already criticism of the prosecutor for the lack of progress in other cases.”

A former OTP staffer, speaking on condition of anonymity, told IWPR that the funding issue alone could decide the matter.

“I do not think the prosecutor would want to waste his resources trying to bring the non-confirmed guys before the court,” the source said. “He has an investigative budget and he will need to conduct ongoing investigations on the remaining four. It would be foolhardy for him to fritter his resources.”

The Lubanga conviction – the first trial the ICC has completed – came at the end of a three-year process beset by delays and blunders. Ohlin believes the trial has served as a lesson for the OTP in how to approach cases efficiently.

“The court is already spread pretty thin. After the length of time it took to get to the Lubanga judgement, the court has to speed up its process. And if that means abandoning a couple of cases, then that is OK,” Ohlin said.

Nzau Musau is an IWPR-trained reporter in Nairobi. Simon Jennings is IWPR’s Africa Editor.