Victims of post-election violence in Kenya in 2008, which left up to 1,500 people dead and as many as 250,000 forced from their homes, have said they are "outraged" at the admission that there is no longer sufficient evidence to charge Kenyan president Uhuru Kenyatta at the International Criminal Court (ICC) with crimes against humanity.
Fergal Gaynor, the Irish lawyer representing the victims, told The Irish Times they were now seeking "a very clear explanation regarding the government of Kenya's co-operation with the prosecution in the Kenyatta case – and how the quality of that co-operation may have impacted on the prosecution's preparation for trial".
Key witness
The prosecutor at the ICC, Fatou Bensouda, has asked judges due to start hearing the case on February 5th to delay the trial again because one key witness is no longer willing to testify, while another has admitted giving false evidence about a key event.
"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," Ms Bensouda said.
Most worryingly for the victims of the violence – who she acknowledged “continue to wait for their day in court, almost six years after the crimes were committed” – Ms Bensouda did not propose a new start date, but instead said she would continue her investigations and then decide whether any new evidence was strong enough to warrant a trial.
It is the first case against a sitting head of state in the ICC’s 11-year history.
President Kenyatta’s lawyers have previously petitioned the court to dismiss the case, claiming that evidence against him is tainted by false statements.
With that previous application in mind, the trial judges in The Hague must now decide whether to grant the adjournment or dismiss the case entirely. A dismissal could do untold damage to the reputation of the court.
While the judges' decision is awaited, those who support the view of the African Union that the case should be abandoned because it represents, in their view, the perfect example of the alleged "hunting" of African leaders by the ICC, have been calling over the weekend for a dismissal.
“There was never any evidence to refer the matter in the first place,” Kenya’s attorney general Githu Muigai said. “There was no evidence to confirm the charges in the second place, and now there is no evidence to commence trial in the third place. That has been my view consistently.”
Similarly, Ugandan peace negotiator, lawyer and long-time ICC critic David Matsanga welcomed the fact that, in his opinion, the ICC prosecutor was on the verge of "throwing in the towel".
'Flawed evidence'
"I feel more saddened that it has taken five years for the OTP [Office of the Prosecutor] to know that the evidence . . . was flawed.
“For me, an adjournment is not the final resting point: I want to see the [case] collapse because of flawed and cooked evidence.”
However, victims of the 2008 violence query the willingness of the Kenyan government to co-operate with the ICC prosecutor, and say that while this raises worrying issues, they are “not intended as questioning in any way the integrity of the prosecutor or her team”.
The key questions to which victims are demanding answers, says Mr Gaynor, is “why, after all these years, the prosecution has not yet collected sufficient documentary evidence (including cell-phone data, intercepts and official records) which, combined with testimonial evidence, would be sufficient to satisfy the evidentiary standards required at trial.”
He added: “These victims believe their chances of getting true justice in Kenyan courts are negligible. The ICC is literally their only hope of justice.
Its investigations must continue for as long as necessary to ensure the truth behind these horrific crimes is revealed.”
