By Mark Kersten
Just when you thought the drama was over…
There have been reports of widespread relief among staff of the International Criminal Court (ICC) that their long-running and dramatic political run-in with Kenya was finally a thing of the past following the recent collapse of the last cases relating to the 2007/08 post-election violence. But the fight over three outstanding warrants of arrest — for three Kenyan citizens wanted by the Court on charges of obstructing justice and intimidating witnesses — suggests that the battle between Nairobi and The Hague isn’t over just yet.
The ICC’s Kenya cases, especially those against President Uhuru Kenyatta and Deputy President William Ruto, did little but harm the Court. A combination of severely flawed prosecutions by the ICC, indifference among political powers in the broader international community, as well as political pressure and interference from Kenya and some members of the African Union, proved a toxic and ultimately fatal mix of factors for the Kenya trials. To address its shoddy cases, some ICC investigators and prosecutors have pushed for more thorough and careful case-construction. For them, the Kenya disaster was a wake-up call. The wider apathy of the international community towards the ICC’s toughest cases, of course, hasn’t change and most days seems like a structural problem facing international criminal justice. But what of the issue of Kenya’s political interference and the allegations of witness intimidation?
Since 2013, the ICC has issued arrest warrants for Walter Barasa, Paul Gicheru, and Philip Kipkoech Bett, on the grounds that they perpetrated “offences against the administration of justice” by “corruptly influencing ICC witnesses”. Since then, they have remained in a sort of legal limbo as the government of Kenya fought the cases against its president and deputy president whilst insisting that it was up to Kenyan courts to decide whether Barasa, Gicheru, and Bett could be transferred to the ICC. Following the collapse of the case against Ruto, however, President Kenyatta was unequivocal, declaring that no other Kenyan citizen would ever to be sent to the ICC:
“I will not allow any other Kenyan to be tried in a foreign court. As a country, we have closed the ICC chapter…
“We have closed that chapter, we will not go anywhere else, we will not allow anyone else to be taken anywhere else, we have our own courts here. I would not wish to see another Kenyan going through the same journey we went through. If we have an issue, the answer to it lies here. For those who might be looking for us, they need to know we are not there and we will not go back.”
Kenya’s Attorney General Githu Muigai has since added that anyone charged by the ICC will be investigated and prosecuted in Kenya, by Kenyans, and that this process would be initiated “in a very few weeks”. But why is Kenya so concerned about the potential prosecution of Barasa, Gicheru and Bett at the ICC?
Small fry pose a narrative problem
While these individuals may seem like ‘small fry’, their fate could determine how all of the ICC cases are understood. In other words, they pose a narrative problem. As suggested above, the ‘death’ of international criminal justice for post-election violence crimes was the result of both the ICC’s poor planning and the government of Kenya’s intrusion into the cases. The result has been an almost embarrassing amount of finger-pointing. Listen to the ICC’s version of events, and you would be led to believe that the only reason the cases collapsed is because of Nairobi’s interventions against the Court. Conversely, Kenyan government officials maintain that the ICC never had good cases against anyone they’d issued an arrest warrant against.
Both sides are entrenched in their positions and won’t budge. But the reality is that both share responsibility for the collapse of these cases. Now, investigators and prosecutors at the Court will never publicly admit that they are at fault. At most, they have admitted implicitly that their previous manner of building cases was faulty by making key changes to case planning, as evident in their recent strategic policy papers. But neither Kenya nor the victims of post-election violence in the country will ever get the satisfaction of an apology or an admission of shared responsibility from prosecutors and investigators for the collapse of the cases.
Kenya could lose control of the narrative
If the cases against the three Kenyan citizens charged with obstructing ICC justice proceed and are successfully prosecuted, the government of Kenya risks losing control of the narrative. Here, it is crucial to recall that these arrest warrants were built on the basis of more sophisticated investigation strategies than the original charges laid against Kenyatta, Ruto et al. In other words, they are likely to be much better and successful cases. Thus winning them would not only give the ICC a ‘win’ and, as I’ve argued elsewhere, potentially lead to a re-prosecution of senior perpetrators of post-election violence; it would also reaffirm the Court’s version of events: that the only explanation for the collapse of the post-election violence cases is the interference of Kenyan agents.
Put another way, protecting Barasa, Gicheru and Bett from ICC prosecution allows Kenya to protect its side of the story. At the same time, of course, Kenya can’t just do nothing either. The government will have to issue an admissibility challenge and argue that because its justice system is willing and able to investigate and prosecute these cases, the ICC must allow them to do so. The three men will subsequently have to be prosecuted in Kenya. This will allow government prosecutors to retain control over any narrative that flows from the trials. But we should not assume that such prosecutions will just act as a shield or entail some kind of sham trial. It wouldn’t be surprising if some or all of these men are convicted as a means to show the effectiveness and standard of Kenya’s judiciary. The real advantage of having government prosecutors in charge is that these men can be painted as being ‘bad apples’ acting on their own volition and not on the orders of any government actors. At the ICC, the exact opposite would occur.
Any sense of relief that the battle between Kenya and the ICC is over, thus, seems premature. The obstruction of justice and witness interference cases are already causing controversy between Nairobi and The Hague. The reason for that is simple: the fate of Barasa, Gicheru and Bett means much more than whether they are ultimately found guilty or not, or even the specific charges against them. Their fate represents a lynchpin in the wider narrative of who is at fault for the collapse of the post-election violence cases.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.