International Criminal Court judges have ended the trial of Kenyan Deputy President William Ruto and broadcaster Joshua Sang due to lack of evidence, possibly linked to suspected witness tampering. Contrary to some reports, the accused were not acquitted and the case may reopen if new evidence is available or the decision is reversed on appeal. We explain all and bring you reactions from civil society and elsewhere.
Insufficient evidence – but who’s to blame?
On 5 April 2016, a majority of judges in ICC Trial Chamber V(a) concluded there was insufficient evidence to continue the Ruto/Sang trial.
Both men are suspected of orchestrating crimes against humanity during Kenya’s 2007-8 post-election violence which left thousands killed, raped, and displaced. The trial opened in September 2013.
As with the with the dropped ICC case against current Kenyan President Uhuru Kenyatta, the Ruto/Sang trial has been severely impacted by the withdrawal of several key prosecution witnesses. The ICC prosecutor alleges they were intimidated to withdraw and has issued arrest warrants for several persons suspected of involvement.
The ruling this week comes on the heels of a judgment earlier this year barring the use of prior recorded witness testimony in the Ruto/Sang trial.
In deciding to end the trial, the Chamber did not grant Ruto’s request for acquittal nor Sang’s “no case to answer” motion and underlined that the case may be re-opened if the prosecutor can provide new evidence. The prosecution may also appeal.
While two of the Chamber’s three judges concurred that the trial should end, they had differing reasons for so doing. Judge Robert Fremr found that the evidence presented by the prosecution wasn’t enough to potentially lead to a judgment of guilt. Judge Chile Eboe-Osuji agreed, but stated the case is a mistrial as he found it likely that the prosecution case was weakened by witness intimidation and political interference with the case.
In her dissent, judge Olga Herrera Carbuccia argued that the prosecution case had not “broken down” as alleged by the defence and the trial should continue.
Civil society reacts
Ms. Betty Abade-Okero, CSO Network, Kenya.
“Once again the victim’s become losers in their quest for justice. Their pursuit for accountability does not end with this ruling and the court must endeavour to pursue the victims’ truth. There should never be any doubt that the victim’s suffered atrocities and gross human rights violations. They deserve closure. It’s the least we can do.”
Andrew Songa, Programme Manager, the Kenya Human Rights Commission
“The systematic witness tampering and intimidation experienced in the Kenya cases has denied thousands of victims of the post-election violence the justice they rightfully deserve. This is even more deplorable in light of the fact that victims of these atrocities have not obtained any adequate redress at the national level but have instead been subjected to a series of broken promises.”
Stella Ndirangu, Programme Manager, International cooperation programme, International Commission of Jurists Kenya.
“The Ruto/Sang case has come to a premature end because of the efforts by influential individuals to intimidate and interfere with the collection and presentation of evidence. Kenya has the primary responsibility to address the crimes committed in its territory and therefore there is still opportunity for the government of Kenya to take action to bring accountability and address the impunity that has characterised the search for accountability for the 2007-2008 post election violence.”
Njonjo Mue, Chairperson, International Commission of Jurists Kenya; Senior Advisor, Kenyans for Peace with Truth and Justice.
“The termination of the Ruto / Sang case by the ICC brings to a sad ending the search for justice for victims of post-election violence who have waited for for almost a decade to find out what happened to them and their loved ones. While it is usually procedurally correct to terminate cases when there is no sufficient evidence to convict, it is also common knowledge that the Kenyan cases at the ICC have systematically collapsed under the weight of contamination of evidence through victim interference and an orchestrated political and diplomatic campaign to intimidate and discredit the Court by the Kenyan government under Uhuru Kenyatta and William Ruto.”
“Domestic proceedings against mid and lower level perpetrators have been virtually non-existent due to a lack of political will and victim assistance and reparations have been haphazard and discriminatory. All this has left the victims of post-election violence deeply wounded, frustrated, and desperate, not knowing where else to look for justice. Going forward, the ICC and all those who support international criminal justice must now embark on some honest soul-searching to reflect on the lessons learned from the Kenyan cases and how the Rome Statute system can be strengthened to deliver meaningful justice to victims of atrocity crimes, especially where alleged perpetrators go on to seize control of the state and to use it to shield themselves against accountability. We continue to call upon the Kenyan authorities to investigate and prosecute perpetrators of post-election violence and to ensure that victims of all forms of violence get meaningful reparations to enable them to rebuild their livelihoods.”
George Kegoro, Executive Director, Kenya Human Rights Commission
“It is difficult easy to feel that the termination of the case against William Ruto is a reward for the sustained political pressure that the Kenyan state applied against the prosecution of the cases before the ICC. The assumptions that the ICC as a court of last resort that would be immune to political pressure, have been proved false. The Kenyan cases provide a large number of lessons for the international community that has all along backed the ICC . it is to be hoped that the failure represented by the Kenyan cases will yield the humility necessary to learn those lessons.”
Ndung’u Wainaina, Executive Director, International Center for Policy and Conflict
“Impunity prevailed. The judges were fully seized of the extraordinary conditions under which the Kenya situation cases have been investigated and prosecuted. They have in the past made clear observations on those circumstances. The Court has issued three arrest warrants for interference with the administration of justice. Appeals Chambers affirmed non-cooperation by Kenya. The Government of Kenya has never established any complementary justice mechanisms. Looking at the broader and deeper picture, the majority judges’ decision is a dark cloud. It is a win for impunity.
“Though judges did not enter an acquittal or no case to answer judgment, it is curious the reasons they used to arrive at their decision—namely witness interference and political intolerance. The Prosecutor should appeal the decision. She must also robustly press charges on witnesses and administration of justice interference.
“Post-election violence victims deserve both prosecutorial and reparative justice. Kenya has no record of prosecuting impunity. This impunity gaps has embodied perpetrators of atrocious crimes and trapped victims in a cycle of violence.”
Karim Lahidji, President, International Federation for Human Rights.
“We deplore that the unprecedented interference with important prosecution witnesses played a significant role in the lack of sufficient evidence presented to support the charges against the accused. The persisting impunity in Kenya prevails over accountability and continuously fails the victims of the atrocities committed during the post-election violence.”
Mr Ruto and his Defense team, led by Karim Khan at the opening of the trial, September 2013 © ICC
Elizabeth Evenson, Senior International Justice Counsel, Human Rights Watch.
“Sadly, this case will be remembered for an apparent campaign to corrupt witnesses. Many Kenyans had supported justice for crimes committed during the post-election violence, but those hopes are likely to disintegrate now given the lack of action in Kenya and the seeming obstruction of the process in The Hague.
“People who stepped forward to testify in this case put themselves at risk, while bribery and threats interfered with the search for the truth. Barasa, Bett, and Gicheru should be surrendered to the ICC but the allegations against them may only be the tip of the iceberg.
“The Kenyan government set out to undermine the ICC while it turned its back on its responsibilities to provide justice and to stop threats against witnesses and human rights defenders. While Ruto and his supporters may celebrate the ICC decision, the victims who have already suffered so much may well now end up without justice or the help they need.
“The ICC was set up to try just these kinds of cases, but it faces many of the same obstacles national investigations confront in cracking entrenched impunity, especially when politically powerful people are involved,” Evenson said. “Stronger investigations, stepped-up witness protection programs, and more consistent international support are the key to doing better for other victims.”
Michelle Kagari, Deputy Regional Director for Africa, the Horn and the Great Lakes, Amnesty International.
“This decision could be seen as a major setback by thousands of victims who have waited so long for justice. However, this is not the end of the road for the victims. In fact, victims should be able to seek justice for these crimes in the future as the accused have not been acquitted, and can be re-prosecuted for these charges either by the ICC or domestically.”
James A. Goldstone, Executive Director of the Open Society Justice Initiative.
“The ICC’s experience notwithstanding, the struggle for justice will continue in Kenya, because victims and their courageous allies will not give up. And it is ultimately in national courts where many solutions to impunity for grave crimes will be found.
This week’s ruling in The Hague makes it more important than ever for the international community to signal clearly its backing for civil society voices in their search for accountability in Kenya, and around the world.”
Alison Smith, Legal Counsel of No Peace Without Justice.
“By vacating the charges, at least the door has been left open for future prosecutions either at the ICC or in national courts. The possibility for justice is still there; the vacation of these charges at this time has not stripped the ICC of jurisdiction, nor of the possibility that charges may be brought against any of those initially charged with the commission of crimes during the post-election violence in 2007-8.
We encourage accountability for those alleged to have been involved with witness tampering: there should be full investigations and charges should be brought where warranted, as was done in this case.
We also encourage the Prosecutor to take a fresh look at what her Office can do to move forward with these cases. This cannot be the end of the line for the victims of the post-election violence. “
The situation in Kenya is the ICC’s fifth investigation. In March 2010, Pre-Trial Chamber II authorized the ICC prosecutor to open an investigation into crimes against humanity allegedly committed in Kenya in relation to violence that followed Kenya’s 2007 presidential election, which killed over 1,200 and displaced 600,000. This was the first time that the prosecutor used propriu motu powers to initiate an investigation without first having received a referral from a state party or the United Nations Security Council.
The ICC was invited by an independent commission to investigate in Kenya after the country’s lawmakers failed on three occasions to agree to set up a national mechanism to establish responsibility for alleged crimes against humanity during Kenya’s 2007-08 post-election violence. Pre-trial judges rejected a Kenyan government challenge to the admissibility of the Ruto/Sang case in May 2011, finding that there were no ongoing domestic proceedings in respect of the suspects. The Appeals Chamber confirmed this decision in August 2011.
Beginning of ICC Trial Against Ruto and Sang Is a Historical Opportunity For Victims – Journalists for Justice
Background to ICC Kenya cases – International Justice Monitor
Transitional Justice in Kenya- In Brief – Justice Info
Why is the Kenyan case at the ICC? – Justice Hub