Charges against Uhuru withdrawn by OTP

Kenyatta case: ICC Trial Chamber rejects request for further adjournment and directs the Prosecution to indicate either its withdrawal of charges or readiness to proceed to trial

 ICC-CPI-20141203-PR1071

Situation: Republic of Kenya
Case: The Prosecutor v. Uhuru Muigai Kenyatta

Today, 3 December 2014, Trial Chamber V(B) of the International Criminal Court (ICC) issued a decision rejecting the Prosecution’s request for a further adjournment of the case against Uhuru Kenyatta, as well as the Defence’s request to terminate the proceedings. The Chamber instead directed the Prosecution to file a notice, within one week, indicating either (i) its withdrawal of the charges in this case, or (ii) that the evidentiary basis has improved to a degree which would justify proceeding to trial.

On the same day, in a separate decision, the Chamber also rejected a Prosecution request for a finding of non-cooperation against the Kenyan Government and referral of the matter to the Assembly of States Parties (ASP) to the ICC Rome Statute.

Decision rejecting further adjournment of the case 

In its decision rejecting the Prosecution’s request for a further adjournment of the case, the Chamber noted factors including the Prosecution’s admission that the evidentiary basis remains insufficient to support a conviction and the Prosecution’s concession that it remains speculative whether the information sought in the cooperation request would, even if obtained, be sufficient to support the charges. The Chamber also noted the accused’s right to be tried without undue delay and the presumption of his innocence. The Chamber found that a further adjournment would be contrary to the interests of justice under the circumstances. The Chamber considered also the victims’ legitimate interests, which include seeing those responsible for the crimes committed being held accountable. However, the Chamber noted that these interests must be balanced with other interests of justice, and, in light of the circumstances mentioned above, found that it would not be in the interests of justice, or of the victims, for the proceedings to be further adjourned on the current basis.

Having ruled upon the adjournment request, the Chamber indicated that, unless the evidentiary base has now improved to a degree which would enable the trial to proceed, it considered the appropriate course of action to be a withdrawal of charges by the Prosecution. The Chamber additionally found that, in the event of a withdrawal of charges, its decision would not prejudice the right of the Prosecution to bring new charges against the accused at a later date, based on the same or similar factual circumstances, should it obtain sufficient evidence to support such a course of action.

Decision on Prosecution’s application for a further adjournment
Decision on the Kenyan Government’s cooperation

On 29 November 2013, the Prosecution filed an application for a finding of non-cooperation against the Kenyan Government, alleging that the Government had failed to comply with a request to produce financial and other records relating to Mr Kenyatta.

After considering the submissions of the parties and participants on this issue, the Chamber issued a decision, today, rejecting the application for referral of the matter to the Assembly of States Parties. Following a detailed assessment, the Chamber found that the approach of the Kenyan Government to the cooperation had not met the standard of good faith cooperation required from States Parties under the Rome Statute. In particular, the Chamber found that the Kenyan Government had taken no meaningful steps to compel production of the materials requested by the ICC Prosecutor. According to Trial Chamber V(B), the Kenyan Government’s non-compliance has impinged upon the Court’s ability to fulfil its functions and powers and in particular, the Chamber’s truth-seeking function.

However, in the context of the potential for a referral to contribute to a fair trial, the Chamber noted its denial of the adjournment request. The Chamber also noted, amongst other things, the Prosecution’s delay in pursuing investigations and in following up on the request for cooperation. The Chamber stressed that the issue of the Kenyan Government’s compliance with the cooperation request should have been addressed at a much earlier stage; it found that doing so would have mitigated the impact that the non-compliance has had on the proceedings in this case to a significant degree.

In conclusion, despite having expressed strong concerns regarding the approach of the Kenyan Government, the Chamber exercised its discretion in not referring the matter to the Assembly of States Parties, since the Chamber was not persuaded that a referral would facilitate a fair trial, was in the interests of justice or was otherwise appropriate in the particular circumstances.

The parties may seek the Chamber’s authorisation to appeal either of these decisions.

Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute

Background

Mr Kenyatta is charged, as an indirect co-perpetrator, with five counts of crimes against humanity consisting of murder, deportation or forcible transfer, rape, persecution and other inhumane acts allegedly committed during the post-election violence in Kenya in 2007-2008. Charges were confirmed on 23 January 2012, and the case was committed to trial before Trial Chamber V(B).

Further information on this case is available here.

For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: fadi.el-abdallah@icc-cpi.int.

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12 comments on “Charges against Uhuru withdrawn by OTP

  1. Many balls in the air…..

    The Kenyatta OTP Pre-Trial brief.

    • Amazing how many people were killed by the planners but even more amazing how many were killed in the aftermath, especially those that the OTP say were part of the planning and execution of attacks.

    • It is great you folks took the original copy and we now have all the 69 copies. Bensouda gave too much info with all the names. They are redoing again to cut out some of the names. Make sure you keep the original thing even in hard copy.

      This is going to be one of the most important documents in the history of the country. Uhuru is only 50 years old. He will deal with this for along time and one time this will be taught in school. Look at the difficulties of restructuring the British atrocities during the mau mau war.

      Then I came upon this in the huffington post.

      http://www.huffingtonpost.ca/david-himbara/kenya-politics_b_6506604.html

      • PS Adong, above i don’t mean you! I mean Kenyan media which does not seem to want to really report what this document says except in some vague terms of things that people already knew.

      • John,

        Glad to know that the info in the website has not changed. The DN reported that Bensouda gave out some names that should have been removed. Looks like they just made that up as usual.

        I am going to print and keep the whole dossier. This stuff is going to be published by some of those human rights groups. It should be and be distributed for free. It will just be a reproduction of an ICC material so no legal minefield will be there for that.

        But one thing is for sure. Those bought by Uhuru to recant their stories need to know that they are now the walking dead. Uhuru is not leaving those guys alive to haunt him later. These guys are joining their mungiki brothers who got slugged after doing the job.

        In fact the reason these guys joined the ICC was because even after they had agreed to work with Uhuru folks were being killed like rats. They got scared and ran and then they were lured back to save muthamaki. Big mistake. When you are dealing with ruthless killers you have to know the rules. The big rule is that their is no honour between murderers and thieves. Survival super cedes everything.

  2. John Dibbley,
    Barasa might find himself behind bars or six feet under after agreeing to protect the big boys. He is playing in a league far above him.

    I dont know how many witnesses are remaining in the Ruto case. If majority have not been cross examined the case is going nowhere. If say 90% have been examined then he has a fight in his hands.

    With the collapse of Kenyatta case all efforts will now be geared towards Ruto´s fight at the Hague and be sure that no “stone will be left unturned”. This spells doom for witnesses.

  3. This is sad, and a crushing blow to Kenyan victims of crimes against humanity. Its also a nervous trend for any future acts of similar crimes, since all that the perpetrators need to do is seize the instruments of power, and then proceed to frustrate wheels of local and international justice.

    Nevertheless, life goes on, so lets wait and see what happens with Ruto’s case. Am guessing its still on rocky ground, but now the excusal and timings may not be as lenient since the big man is off the hook.

    Am guessing here that the trial chamber has no option but to concur with the OTP

    It will be interesting to see the outcome of Ruto’s case, hope it will not be too long drawn out

    Lastly now Kenya should prepare for the true colours of the Kenyatta oligarchy. Am guessing it will be way different than what many people think. All those people who thought they were “protecting him” from colonial masters are no longer useful. Lets see how that pans out.

    Meanwhile here is the statement from OTP

    • The people from central province as celebrating. One of their own has been given a break and the chances that the OTP recharging him again is close to nil.

      The victims are crying foul and are shocked that no justice will be carried out. Its a sad day for them and they obviously have no cause to celebrate.

      Ruto on the other hand is still on the docks and might be praying for his case to be withdrawn. I don’t know how long his case will go on but if it continues for a longer period then it will face the same obstacles as Uhurus.

      This opens doors wide open for impunity.

      • Ruto is already getting a lot of “assistance”. It’s been over a year now, and there is no sign that Barasa is going anywhere.

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