In an extensive interview with Radio Netherlands Worldwide touching on several issues, former Chief Prosecutor of International Criminal Court (ICC), Moreno Ocampo gave his thoughts on the ongoing Kenyan trials, his legacy and the lesson learned from the Kenyan cases.
On the whole, Ocampo’s assessment on the Kenyan case is less sanguine; well, Kenya is not Sweden, but things are not catastrophic. This doesn’t sound reassuring.
Under his tenure, six Kenyans were identified as the suspects who bear the gravest responsibility for the electoral violence that followed the disputed 2007 presidential elections.
From Ocampo six to Ocampo four
On the 7th and 8th of April 2011 the Pre-Trial Chamber of the ICC convened to hear for the first time in The Hague the six individuals.
The purpose of the conference was to verify the identity of the suspects and to ensure that they have been informed of the crimes they are alleged to have committed, as well as aware of their rights under the Rome Statute, founding treaty of the ICC.
The six Ocampo suspects included Uhuru Kenyatta, William Ruto, Henry Kosgey, Joshua Sang, Francis Muthaura, Mohammed Hussein Ali,
However, 23 January 2012, charges against Ali and Kosgey were dropped.
Since taking over as the new Chief Prosecutor in 2011, Fatou Bensouda has dropped charges against Francis Muthaura 11 March 2013.
Witness coaching and witness intimidation
Since the beginning of the trial, incidences of witnesses failing to appear in court has become a concern.
This has led to accusation between the defense and the prosecution.
The prosecution argues witnesses have been intimidated from testifying with several of them recanting their earlier testimony.On its part the defense argues the witnesses were coached in the first place. .
For instance, the Kenyatta’s trial was initially slated to begin last week, but it was postponed for a fourth time last month when prosecutors said another witness had withdrawn and requested more time to conduct further investigation. The defense is now arguing that the charges should be dropped all together because the prosecution simply does not have sufficient evidence.
Regardless of the whether the witnesses have been coached or intimidated, the fact that they are withdrawing or failing to appear is an acute commentary on the status of the court’s witness protection scheme.
But when asked about the witnesses, Ocampo provided what might be construed as a pre-emptive plea for forgiveness for job not well done.
Here is an excerpt from the interview
HTK: Could anything have been done to prevent witnesses withdrawing now?
LMO: I don’t think you could do anything to avoid the problem we have now because we protected our witnesses. We transferred them from Kenya to different places. But in some cases, we know families in Kenya were affected or threatened.
THTK: What was the biggest challenge you encountered in the investigation?
LMO: In Kenya, the biggest challenge was to collect the evidence in a free way because the Kenyan government was really worried and there were people in the Kenyan government who were involved in the crimes. We had evidence against Francis Muthaura. The evidence was not enough to go to trial, but we had evidence against him. And Muthaura was one of the most powerful persons in Kenya in those days. So it was very difficult to collect evidence against them. And then when we tried to interview people, the Kenyan government was asking us for a very formal process, where we were going nowhere. When we extracted witnesses from there and we put people outside the country, protection was a big issue because it’s difficult to be protected. Imagine a Kenyan person living in a European country. Some of them became drunkards.
Watch the entire video here The Kenya’s case is a referendum on the court. But whichever way the court rules it will be damned; if it find the suspects guilty it will be accused of imperialism and race hunting, and if it acquits them it will be accused of failing to successfully prosecute any high level suspect.
Since its formation in 2002, warlord Thomas Lubanga is the only person convicted by the court in 2012.