An exclusive chat with Steven Kay in his home office in England. The defence lawyer of Kenyan President Uhuru Kenyatta talks about his success before the International Criminal Court (ICC). In December, the prosecutor dropped charges against Kenyatta, accused of crimes against humanity during PEV (2007-2008). Last Friday, 13 March, Trial Chamber V(B) decided to terminate the proceedings in this case and to vacate the summons to appear against Kenyatta.
By Sophie van Leeuwen
JH: Why did you want to defend the President?
“I was an admirer of his father, the first president of Kenya. Jomo Kenyatta was put in prison by the British for six years on false evidence and then released. The witness who gave evidence against him retracted the evidence later in very suspicious circumstances. He was also defended by a British barrister, Dennis Pritt.
JH: Did you celebrate, when the ICC dropped charges against Kenyatta?
“No, no. I didn’t celebrate. It was just the end of the case, and then we considered what needed to be done next. We’re professionals. We’re lawyers. This isn’t a game for us. It’s not like scoring a goal [or] anything like that.
JH: How do you look back on the ICC case?
“I was very disappointed by the conduct of the prosecution, by the outcome of the confirmation of charges hearing and the procedures that followed. They were all in a hurry to get this case of a high profile African leader up in court and in a trial. They didn’t have the facts. They’re misleading.
“This was a case built on rumour and hearsay. It was open to individuals claiming to be eyewitnesses to events involving Kenyatta that the prosecution never went to check. Non investigation. The prosecutor’s office (OTP) could have gone and obtained any evidence it wanted. I had to do it before Kenyatta was president as well as when he was president.
JH: Does the Pre-Trial Chamber work?
“In certain cases, it works. There’s a filter system. There was a feeling about the rush to justice over the Kenyan cases, for that matter – the very short timelines – that made a feeling that this was going in one direction: to trial.
“What alerted me to a problem with the prosecution case here and should have alerted the judges was when Mr. Ocampo made a filing before the confirmation of charges hearing that the credibility of his witnesses should be disregarded as an issue. I find asking a judge to ignore credibility when he’s making a decision utterly ridiculous and impossible. Judges have to assess credibility of evidence.
JH: What has the ICC learnt from other tribunals?
“The ICC is the hardest task because its jurisdiction is over any number of different states. I think it’s easier if you’re focused on one state, like an ad hoc tribunal is, such as Yugoslavia, Rwanda, Sierra Leone.
“A lot of people are very surprised when I say, do you know how many effective trial courtrooms there are at the ICC? Some say 20. Some say 10. But no one gives me the real answer, which is one courtroom. Now, how can one courtroom deal with all the problems of the world that is has been given the task to do? There’s a second courtroom which is the size of a cupboard. I don’t think the ICC can really fulfil the mandate it’s given itself.
“Of all the courts, perhaps the victims’ section of the ICC is the biggest part. That sets it apart from the other courts. That’s an enormous burden for the Court to take on at a justice level, when perhaps that should be dealt with at a political level. The international community, if they are concerned about the victims in a situation, should take on that responsibility, instead of putting it onto a small court to try and fulfil expectations.
JH: Lessons for international justice from this case?
“Well, the first must be that properly-resourced defence counsels are essential for getting to the truth of a case and assisting the Court in the interests of justice. The resources for court-funded legal aid at the ICC are very bad. I could not have done, with my team, on behalf of a legally-aided accused what we were able to achieve on behalf of Uhuru Kenyatta, which got to the truth of the case.
“The second lesson must be that judges listen to the defence in their submissions and that judges are experienced in dealing with issues of credibility and facts. One of the disappointing things was the wholesale rejection of all the defence arguments by the Pre-Trial Chamber, when those arguments actually later – three years later – were found to have been correct and true.
“The other lesson is this: that when you investigate a case, you don’t take your case off someone else’s shelf. You investigate it yourself. You apply a well-resourced, well-trained, competent set of people to the task of investigating, and you follow the spirit of the statute, which has a duty to investigate for exculpatory as well as incriminatory evidence. In this case, I saw no desire by the prosecution to investigate exculpatory issues. They only paid lip service to that duty.
JH: Is money the problem or attitude?
“It’s attitude. I believe the prosecution already has enough money. I believe that the judges should not be so close to the prosecution. I believe the court and judges should be in a separate place, and the prosecution in an entirely separate building.
“I believe that the Coalition for the International Criminal Court, which purports to analyse issues for the ICC, should not apply so much pressure or indeed be given the status and credibility in relation to proceedings at the court that it has. I found that there was a greater readiness and willingness for that organisation to promote prosecution matters but a blind eye to anything the defence put forward. They did not treat justice equally.
JH: ICC prosecutor Bensouda will continue investigations. What’s next?
“I can tell you Bensouda is talking total rubbish. There isn’t another case. There will never be another case, as there wasn’t a case in the first place. This is again an example of the OTP trying to protect its public image and send a message that is misleading.
“I’ll wait to be consulted, and it’s a matter for Kenyatta. I suspect being a president and head of state, he is a very busy man. I got the feeling during this case that he knew the truth. He knew what the outcome would eventually be, and he had a job to do for his people.”
Click here for the full transcript of the interview with Steven Kay on our sister site, The Hague Trials Kenya.
The interview took place on 26 February 2015.