International Criminal Court asked to keep Kenyatta case open

Lawyers urge judges not to let prosecutor drop investigation of Kenyan leader

In a surprise development, counsel for the victims in the case against Kenyan president Uhuru Kenyatta has asked judges at the International Criminal Court (ICC) not to allow the prosecutor to abandon her "active" investigation – despite the fact that charges against Mr Kenyatta have been withdrawn.

Having put off a visit while Mr Kenyatta was facing five counts of crimes against humanity arising from post-election violence at the end of 2007 and start of 2008, US president Barack Obama finally made a three-day trip to Kenya in July, six months after the case collapsed due to lack of evidence.

Now, however, the judges in the most controversial case in the 12-year history of the court have been asked to review the legality of the prosecutor’s decision to end her investigation, which she alleged had run into the sand because the Kenyan government refused to co-operate.

Counsel for victims

In a filing yesterday,


Fergal Gaynor

, counsel for some 20,000 victims of the violence, urged the pre-trial judges not to confirm the prosecutor’s decision until they were satisfied she had complied with her legal obligation to carry out a “prompt, thorough and effective” investigation and prosecution.

Although Mr Gaynor insists that the victims in the case remain unanimous in their support for the ICC, the documents lodged with the court in The Hague are scathing about the manner in which the case was handled by the chief prosecutor, Fatou Bensouda.

In those documents, the victims claim the prosecution “failed to ensure the effective investigation and prosecution of the crimes committed against them”. In fact, they maintain, both the investigation and the prosecution were “manifestly ineffective”.

All charges against Mr Kenyatta and co-accused Francis Kirimi Muthaura and Mohammed Hussain Ali collapsed without a single day of trial in any of the three cases, the papers point out.

“Instead of encouraging inter-ethnic peace and reconciliation, the collapse of the charges . . . has instead engendered in the victims feelings of bitterness and anger. The court’s credibility and deterrent effect were damaged. A less effective investigation or prosecution is difficult to imagine.”

Statute failure

In terms of more specific failings, the filing alleges that the prosecution failed to make effective use of Article 87 (7) of the Rome Statute, under which the ICC was set up, to counter state non-co-operation. The Kenyan government has always rejected this charge.

Unusually, Mr Gaynor also urges the judges to ensure “total transparency” in relation to the decision to end the prosecution investigation because of the clear geopolitical importance of the Kenyatta case.

“By ceasing the investigation and prosecution of an accused following his election as head of state and head of government of a strategically important country which supports Western security interests in an unstable region,” he said, “others might form the misperception that the prosecution’s inaction has been influenced by powerful states.”

Peter Cluskey

Peter Cluskey

Peter Cluskey is a journalist and broadcaster based in The Hague, where he covers Dutch news and politics plus the work of organisations such as the International Criminal Court