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ICC scared beyond action by Kenyatta

In March 2011, President of Kenya Uhuru Kenyatta was indicted by the International Criminal Court in The Hague on five counts of crimes against humanity. He is accused of being criminally responsible as an indirect co-perpetrator for murder, forcible transfer, rape, persecution and other inhumane acts allegedly committed in 2007. Yet last week Kenyatta’s trial was once again delayed in response to the withdrawal of two witnesses. ICC Chief Prosecutor Fatou Bensouda has stated that “currently the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial.” These events pose a serious threat to the credibility of the ICC. The prospect that these witnesses withdrew because of intimidation demonstrates the uneasy relationship between the court and the Kenyan government. If Bensouda is unable to rebuild her case against Kenyatta, the future of the court will plunge into further uncertainty.

The pre-trial proceedings against Kenyatta have been marred by Kenya’s refusal to cooperate with the court. Last September, Kenya’s members of parliament approved a motion to withdraw from the ICC. As I have argued in a previous piece, this is merely a symbolic political action that would have no effect on the trial and only remove the ICC as a court of last resort. As the Rome Statute clearly states, “withdrawal shall not affect any cooperation with the Court in connection with criminal investigations.”

A month later, Kenyatta himself escalated tensions when he erroneously accused the court of “race-hunting” in an address at an African Union summit. It is true that cases brought to the ICC have disproportionately involved Africans, but the fact that the vast majority of defendants brought to The Hague have been delivered by their own people immediately faults any accusations of racism.

In addition to these very public events, there have been consistent reports of witness intimidation. Perhaps most striking is Kenyatta’s desire to prosecute witnesses on the grounds of self-incriminating evidence. In November, Kenyatta identified 15 witnesses whom his lawyers deemed to be “self-confessed criminals.” Such an act not only intimidates valuable witnesses but also flagrantly ignores the unlimited right against self-incrimination during pre-trial investigations. Bensouda was right to insist on necessary protective measures needed to mask the identity of witnesses testifying before a camera. Any less protection may prompt further witnesses to abandon the crippled case. Given the accused’s behavior, it is not unreasonable to assume the witnesses who withdrew were intimidated.

The act of bringing a standing head of state to the docket of an international court was clearly going to have its complications. Yet, the actions of Kenya’s parliament and those of Kenyatta have intimidated the court itself.

A version of this article appeared in the Wednesday, Jan. 29 print edition. Peter Keffer is opinion editor. Email him at pkeffer@nyunews.com.
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12 Responses to “ICC scared beyond action by Kenyatta”

  1. Carlos Mopis on January 29th, 2014 9:14 am

    The articles is biased and portrays Uhuru as a criminal. Kenyans know what happened in 2007/2008 and overwhelmingly voted for Uhuru despite threats from the West. Questions about the witnesses were raised before the proceedings commenced. At the minimum, the prosecutor should have bothered to verify the allegations. We believe the owners of the ICC are in Washington and London and use the court to further their political and economic interests. A case in point is Kenya.

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    Peter Keffer Reply:

    Uhuru is not a criminal but he remains accused despite any position of power which he may hold. In any case, Uhuru won 50.51% of the vote, hardly an overwhelming majority in a system which requires candidates to win at the very least 50%. Also, given the fact that Uhuru is about to be welcomed in the White House by Obama lends reason to believe that the Americans do not hold as much interest in the ICC as you portend.

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    Mouktar Albert Reply:

    Kenyatta won 50.51% of the vote Odinga won 46% that’s a sizable gap. Obama is backtracking from his administration’s hardline position after the Kenyatta election victory, the collapsing icc case and continuing decline of America’s relation with Kenya in contrast to china. They thought they could use the icc as a sort of bloodless regime change and it blew up in their faces and now they are backtracking.

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    mjuaji Reply:

    Correction Odinga had only 43%.

    indsn Reply:

    Why should anyone choose to be blind to the fact that the PEV was a direct result of ‘no Raila no peace’ war calls! Any attempt to protect Raila and criminalize anyone else instead was always bound to fall into trouble at some stage. In all fairness, the right thing to do is to indict the correct criminal(s).
    As for criminal witnesses why should they get protection from anywhere instead of facing charges brought against them correctly and fairly. And surely it is only logical that Kenya has a right to prosecute any self confessed criminal regardless of how much such a criminal may have pleased western donners.
    .A criminal is always a criminal. Soon or later even in protection in western capitals some of those protected criminals will go back to their criminal ways.
    It is time to accept reality and Uhuru. Any reference to him as a criminal is actally criminal in nature and intent.

    mjuaji Reply:

    a case based exclusively on criminal testimony is bound to face some headwinds since there’s no honor among thieves. The fact that the ICC could not find any decent person as a witness indicts the ICC

    Carlos Mopis Reply:

    “In any case, Uhuru won 50.51% of the vote, hardly an overwhelming majority in a system which requires candidates to win at the very least 50%. “..Did Uhuru win at least 50% or not? Maybe my understanding is poor.
    Meanwhile, the conspiracy to impose a Western puppet on Kenyans flopped spectacularly. Kindly publish a balanced article on witness coaching by NGO scavengers in Kenya, threats by Johnnie Carson and the West ,witnesses bribery, witnesses who gave false evidence to the prosecutor, the poor methodology used by the prosecutor to gather evidence e.t.c. Otherwise, we are not helping justice and the victims of the violence.My take is that the Western media is used to advance the interests of their governments.

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    mjuaji Reply:

    50.51% seems about the same as Obama’s majority or do different standards apply outside of the US of A

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    obienga Reply:

    In the good old US of A, your domicile, Barack Obama was elected with 51.1% . Like it or not, a majority is a majority, that is how democracy works, understandably that is hard to respect by those whose preferred puppet candidate was not elected. The nearest contender in the Kenya elections had 43.70%. The bias in the article is unmistakeable. Has a single witness or motion been put forward by the prosecution to provide evidence of intimidation? The prosecution spends its time parroting such claims to be repeated as fact by ICC groupies and the press. Self confessed criminals who actually committed crimes deserve to be behind bars. Individuals who committed rapes, murders, maimed innocent civilians should not be given immunity from prosecution outside of the ICC’s jurisdiction. Ironically the ICC waded into Kenya on the claim that perpetrators of violence had not been prosecuted, yet here it is as a tool to the obstruction of justice. Did it escape your notice that the defense has submitted evidence of lies told by some of the called ‘saintly’ witnesses who have gone on to be withdrawn by the prosecution? The victims want to see their actual rapists and killers behind bars, not paraded around as saints simply because they provide the prosecution with fictitious tales that fit the prosecutions claimed charges. The Kenya Parliament are the democratically elected representatives of the Kenyan people. The United States exercised its sovereign right not to join the ICC. Further to that the “Hague Invasion Act” makes it clear that the United States will if necessary invade the Hague to free Americans held by the ICC. Now which serves as a greater act of intimidation?

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    mjuaji Reply:

    21st century imperialism.

    ICC is petty colonial court used for regime change projects.

    There are simply no witnesses against Kenyatta. The witnesses withdrawing are in European safe houses; how does Kenyatta intimidate them from there?

    Odinga the west’s pet was behind the violence.

    I’m not a fan of Uhuru’s but Africans are sick and tired of neo-colonial games.

    You might want to indict GWBush for waging war against Iraq unless he’s managed to find the WMD. The drones killing Pakistani toddlers are an indictable offence never mind that to the Americans – the pakis are the children of a lesser god or simply collateral damage. Anglo saxon racialism is collapsing under a mountain of trillions of dollars of debt. The ICC will drift to irrelevance as USA needs more aid from China to support its deficits

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  2. stanley on January 31st, 2014 2:10 am

    You are just a typical american who reads blogs on Africa and think you an expert. Your article is as shallow as your picture. Pretty naive.. The ICC case and the victims were failed when Ocampo came to Kenya and went on holiday adopting cheetahs instead of conducting an investigation. But of course he was just another westerner like you who thinks they understand Africa more than Africans themselves…

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  3. rsvp5627 on February 3rd, 2014 2:35 am

    I fully agree with Uhuru’s remarks at the African Union summit, that the ICC is a toy of declining imperial powers.

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