January 27, 2014

by Alemayehu G. Mariam*

I am getting a little jittery over the repeated delays, postponements and all the backpedalling talk about “false evidence” and “lying witnesses” in the Uhuru Muigai Kenyatta International Criminal court trial. I don’t want to say I smell a rat but I feel like I am getting a whiff. Is the stage being set to let Kenyatta off the ICC hook?

There has been feverish efforts to defer, delay and dismiss Kenyatta’s prosecution as a sitting head of state since January 2012 when the International Criminal Court’s (ICC) Pre-Trial Chamber confirmed charges against him. In May 2013, Kenya’s Ambassador to the U.N. Macharia Kamau filed a 13-page “Confidential” letter with the President of the UN Security Council seeking to take the Kenyatta case out of ICC hands and directing it to relinquish jurisdiction to Kenyan courts. In the same month, Hailemariam

Desalegn, the ceremonial prime minister of Ethiopia and rotational chairman of the African Union, went on the warpath accusing the ICC of going on an African safari “race hunting” black African leaders. In June 2013, the ICC delayed Kenyatta’s trial until November 12 having determined Kenyatta’s defense team needs adequate time to prepare for trial. In September 2013, Hailemariam formally demanded that the ICC drop charges against both Kenyatta and Ruto. At the 68th UN General Assembly, Hailemariam hectored that the ICC is undermining the “ability of the Kenyan leaders in discharging their constitutional responsibilities” and that dropping the charges “is very critical to support the peace building and national reconciliation processes in [Kenya].”

In October 2013, the African Union (AU) held a special summit to discuss the Kenyata/Ruto ICC trial and to demand that the ICC relinquish jurisdiction to Kenyan courts. In the alternative, they vowed to stage a mass walk out of African countries from the Rome Statute. They gathered in Addis Ababa in a pathetic spectacle like panicked prey fleeing a stalking predator (race hunter) seeking safety in numbers. They huffed and puffed, ranted and raved against the ICC, but the threatened “mass treaty-cide” flopped . The Sturm und Drang of a mass walkout on the Rome Statute proved to be nothing more than a tempest in a teapot. The AU subsequently filed a request with the Security Council to delay Kenyatta’s trial by one year. In mid-November 2013, the Security Council rejected a resolution to delay the trial. Ambassador Kamau declared, “The deferral has not been granted. Reason and the law have been thrown out the window, fear and distrust have been allowed to prevail.” Surprisingly, the U.S. did the right thing. U.S. UN Ambassador Samantha Power affirmed, “The families of the victims of the 2008 post-election violence in Kenya have already waited more than five years for a judicial weighing of the evidence to commence. We believe that justice for the victims of that violence is critical to the country’s long-term peace and security. It is incumbent on us all to support accountability for those responsible for crimes against humanity.” Last week, it was announced that Kenyatta’s trial set to begin on February 5, 2014 has been postponed once more for three months to give the Prosecutor time to reassess evidence against Kenyatta after “a witness withdrew and another admitted giving false evidence.”

False evidence and lying witnesses?

For the past month, there has been disturbing talk of “false evidence” and “lying witnesses” in the office of the ICC Prosecutor. On December 19, 2013, ICC Chief Prosecutor Fatou Bensouda said, “On December 4, a key second witness in the case confessed to giving false evidence regarding a critical event in the Prosecution’s case. This witness has now been withdrawn from the Prosecution witness list… Having carefully considered my evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr Kenyatta does not satisfy the high evidentiary standards required at trial… I therefore need time to complete efforts to obtain additional evidence and to consider whether such evidence will enable my office to fully meet the evidentiary threshold required at trial.” In March 2013, when the ICC prosecutor dismissed its case against former Kenya head of Civil Service and co-defendant Francis Muthaura, Bensouda said his dismissal has no impact on her case against President-elect Uhuru Kenyatta. “Logic dictates that the withdrawal of charges against one indirect co-perpetrator does not have an automatic knock-on effect with the respect to the charges against another alleged indirect co-perpetrator. The fact that multiple individuals are charged in the same Document Containing Charges under the same mode of liability does not require lock-step decisions to be taken with respect to each co-accused… Whereas Kenyatta was allegedly in charge of the provision of financial and logistical support to the direct perpetrators, Muthaura allegedly secured the support of the Mungiki and directed the latter to commit the crimes in Nakuru and Naivasha (and) provided institutional support for the execution of the crimes on behalf of the PNU Coalition.”

Arguments to let Kenyatta and Ruto off the ICC hook

Various legal, political and policy arguments have been advanced to get Kenyatta and Ruto off the ICC hook either by “delaying” their trial until they leave office, granting one-year “deferrals” and postponing the trial indefinitely or dismissing the ICC charges and returning the matter to the jurisdiction of Kenyan courts. Among the major arguments include the following: Prosecuting Kenyatta and Ruto violates Kenyan sovereignty. Kenyatta and Ruto are entitled to immunity from prosecution because they were found “innocent” in the March 2013 election. The evidence against Kenyatta and Ruto is “false and manufactured”. The Office of the ICC Prosecutor is unfair and has engaged in a pattern and practice of abuse of prosecutorial powers resulting in a denial of due process to Kenyatta and Ruto. The ICC and the Prosecutor have unchecked powers and are accountable to no one. By prosecuting Kenyatta and Ruto, the ICC has usurped the powers of the U.N. Security Council. The Rome Statute violates the U.N. Charter and its prosecution of Kenyatta and Ruto is illegal and beyond its legal authority (ultra vires). Kenya is ready, willing and able to prosecute violators of crimes under the Rome Statute in its own courts. The ICC prosecution of Kenyatta and Ruto is pointless.

After the dust settles, what African dictators really want is a double standard of justice. They want the ICC to allow them to be prosecuted and adjudicated by their own hand-picked prosecutors and judges at the time of their own choosing.

Handwriting on the wall: “Double standard of justice for African ‘leaders’ accused of crimes against humanity”

Are all the delays, postponements and deferrals gentle hints and winks that some kind of a political “deal” has been cut between the ICC, Kenyatta, the African Union and the UN Security Council to eventually let Kenyatta off the hook? Is all of the talk about recanting and lying witnesses a trial balloon (a way of testing public opinion and gauging potential public reaction) and part of the political theatre to prepare international public opinion for the inevitable dismissal of charges against Kenyatta for lack of evidence? Is there some sort of orchestration (I did not say conspiracy) between the ICC, the African Union, Kenyatta and the U.N. Security Council to let Kenyatta off on a legal technicality? Don’t read me wrong. I am just reading the handwriting on the wall and asking questions. That’s all.

Will Uhuru Muigai Kenyatta in 2014 walk out of the International Criminal Court “for lack of evidence” and declare to the world, “I told you I was innocent. The ICC’s accusations against me were nothing more than race hunting and legal lynching . The ICC is out to get black African leaders… One last thing, Omar al-Bashir of Sudan is also falsely accused. Dismiss the charges against him too…”

Call me suspicious if you like. It is a professional trait; defense lawyers are notoriously suspicious and have hypersensitive olfactory senses to smell rats (I said I just feel like I am getting a whiff). While I am talking about lawyers, let me say that the mantra of the criminal defense lawyer is “deny, delay and defend the case”. I am beginning to wonder in the Kenyatta trial if the ICC is getting cold feet and trying to extricate itself from a highly controversial case by adopting a new mantra: “Defer, delay and dismiss the case”. I am just thinking out loud. To me, justice deferred, delayed and dismissed is justice denied.

The evidence against Kenyatta

Just as “one swallow does not a summer make”, one or two witnesses do not a criminal case make. Kenyatta is charged in a five count indictment under article 25(3)(a) of the Rome Statute for the crimes against humanity including murder (article 7(l)(a), deportation or forcible transfer (article 7(l)(d), rape (article 7(l)(g), persecution (article 7(l)(h), and other inhumane acts (article 7(l)(k). The allegation are based on evidence shocking to the conscience and detailed in a 155-page document based on the testimony of hundreds of witnesses. When the Pre-Trial Chamber confirmed the allegations against Kenyatta, it wrote, “the Prosecutor has provided sufficient evidence to establish substantial grounds to believe that the contextual elements common to all crimes against humanity are fulfilled…”

Much of the testimonial evidence against Kenyatta is independently corroborated and documented. For instance, the ICC Pre-Trial Chamber determined “there are substantial grounds to believe that on 3 January 2008 at the Nairobi Club… Mr. Kenyatta met with Mungiki members [sometimes referred to as the “Kenyan mafia”] and directed them to commit the crimes charged.” There is substantial evidence to show Kenyatta and others “agreed to pursue an organizational policy to keep the PNU [former president Kibaki’s Party of National Unity] in power through every means necessary, including orchestrating a police failure to prevent the commission of crimes”. There is substantial evidence to show Kenyatta and Co., “devised a common plan to commit widespread and systematic attacks against perceived ODM supporters by: (i) penalizing them through retaliatory attacks; and (ii) deliberately failing to take action to prevent or stop the retaliatory attacks”.

There is substantial evidence to show Kenyatta “taking the role of mediator between the PNU and the Mungiki criminal organization, facilitated a series of meetings from November 2007” in which “senior PNU government officials, politicians, businessmen and Mungiki leaders solicit[ed] the assistance of the Mungiki in supporting the government in the December 2007 elections”. There is substantial evidence to show that in the post-election period, Kenyatta and others “facilitated the meetings with the Mungiki with a view to organizing retaliatory attacks against perceived ODM [Orange Democratic Movement] supporters in the Rift Valley [and] strengthen the PNU’s hold on power after the swearing in of the President”. There is substantial evidence to show Kenyatta and others “contributed to the implementation of the common plan, by securing the non-intervention of the Kenya Police and by failing to punish the main perpetrators of the attacks.”

It seems the ICC Prosecutor’s position is that the alleged false testimony of two witnesses completely undermines the Prosecution’s case. It is not at all clear why the two witnesses gave false testimony in the first place and how the ICC Prosecutor’s office failed to further corroborate their testimony before filing charges. It is, however, a fact that witnesses against Kenyatta have been threatened and bribed. In February 2013, Prosecutor Bensouda claimed Kenyatta bribed a witness to withdraw his testimony and not to testify in the case. Bensouda stated, “Witness 4 revealed in May 2012 interview that he had been offered, and accepted, money from individuals holding themselves out as representatives of the accused to withdraw his testimony against Uhuru… The witness provided emails and bank records that confirmed the bribery scheme. In light of these cumulative revelations, the prosecution considers it is not useful to call him as a witness.” Kenyatta’s defense team has also demanded the ICC turn over to Kenyan authorities the evidence given by the “self confessed criminals so they can face the full force of the law.” Prosecutor Bensouda had asked the Court to grant the witnesses courtroom protective measures, including voice and image distortion, use of pseudonyms and in camera sessions for identifying evidence. Should it come as a surprise to anyone that witnesses who face massive retaliatory actions by the Kenyan Government suddenly declare they have given false testimony to save their lives?

I believe the whole “lying witnesses” “false evidence” talk is disingenuous. The case against Kenyatta is not based on the testimony of a couple of witnesses. There are hundreds of witnesses who gave evidence. There is “substantial evidence” to bring Kenyatta to trial and let the Court determine whether that evidence points to Kenyatta’s guilt beyond a reasonable doubt. It is incomprehensible that ICC Prosecutor should hinge her entire case on the veracity or recantation of one or two witnesses. There is a mountain of circumstantial evidence against him. There is no reason not to proceed with the trial.

Time for an ICC Witness Protection Program?

Witness intimidation, paying off witnesses, subornation of perjury and witnesses changing stories are nothing new particularly in high profile criminal trials. It is not uncommon for witnesses to recant (take back) testimony before or after trial. It is not uncommon for intimidated witnesses not to cooperate with prosecutors or make themselves intentionally unavailable as witnesses at trial. For instance, witnesses (“snitches”) in the criminal trials of Mafia bosses and other underworld figures have been known to recant or withdraw their testimonies because of intimidation and threats to themselves and family members. Jurors have been bribed by criminal bosses to return not guilty verdicts. In fairness, witnesses are also pressured by prosecutors who offer “cooperating” witnesses secret deals in the form of reduced charges and sentences and other benefits to give testimony. The recantation of the Kenyatta witnesses raises unsettling and puzzling questions. It seems they are withdrawing their testimonies not because they actually gave “false testimony” but because they fear certain retaliation if they appear at trial and testify. Their recantations should not be taken as genuine but as the product of fear of persecution and prosecution.

I believe there is a reasonable solution to the problem of recanting witnesses in the Kenyatta trial: Create an “International Criminal Court Witness Protection Program” for deserving witnesses. In the U.S., the Federal Witness Protection Program provides protection to threatened witnesses before, during, and after a trial. In the program, witnesses and their family are provided new identities and documentation and relocated. Since the program was launched in 1971, nearly ten thousand witnesses and family members have been placed in the witness protection program. Incredibly, “95% of the witnesses in the program are criminals.”

I believe the ICC should launch its own “Witness Protection Program” for witnesses coming forward to testify against suspects charged with crimes against humanity, genocide and other infamous crimes. The numerous Munguki (“Kenya’s mafia”) Mafia) face real (not imagined) threats of persecution and prosecution not only from the Government of Kenya but also the wrath of their own organization for attracting such unwelcome attention of the government. The Munguki witnesses should be presented the option of testifying the truth, the whole truth and nothing but the truth at the trial of Kenyatta and being placed in a witness protection program outside of Kenya. Without an ICC witness protection program, it would nearly impossible to get cooperating witnesses with credible evidence to come forward. Few would be brave enough to pay the cost in their lives to bring the truth to light. Without a witness protection program, I believe many African criminals against humanity in power today would feel assured that they will laugh their way out of the International Criminal Court certain in the k nowledge that no one in their countries would dare testify against them and expect to live. The ICC should learn this fundamental lesson from the Kenyatta case.

Could the ICC let Kenyatta off the hook?

I want to make it absolutely crystal clear that I have no evidence or objective basis to believe or suspect the ICC will let Kenyatta off the hook for political or other reasons. I need to state no reasons in defense of my faith in the integrity of the institution as I have volunteered myself to be a “Witness for the ICC.” I will readily accept any criticism suggesting that my anxiety about the ICC letting Kenyatta off the hook is a figment of an overactive and suspicious legal imagination. I much prefer to think that it is a product of a “thought experiment”, an exploration of hypothetical counterfactual propositions and imaginary situations to think through possible consequences and outcomes of real problems. This commentary is my “thought experiment” about thinking the unthinkable, the unimaginable: 1) “The ICC has dismissed the charges against Uhuru Muigai Kenyatta for lack of substantial evidence.”

I agree fully with the observations of U.S. UN Ambassador Samantha Power: “The families of the victims of the 2008 post-election violence in Kenya have already waited more than five years for a judicial weighing of the evidence to commence. We believe that justice for the victims of that violence is critical to the country’s long-term peace and security. It is incumbent on us all to support accountability for those responsible for crimes against humanity.” In other words, justice deferred, delayed and dismissed is justice denied!

Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a practicing defense lawyer.

Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a practicing defense lawyer.

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