Looking Back, Looking Forward: The Implications of the Termination of the Kenyatta Case Before the ICC

Summary

INTRODUCTION

In March 2015, the International Criminal Court formally terminated the case against Kenyan president, Uhuru Kenyatta, the Prosecutor having indicated that the evidence available was insufficient to prove beyond reasonable doubt that Kenyatta was guilty of the crimes against humanity charges that he was facing before the Court. The charges against Kenyatta arose in relation to the violence that followed the announcement of the results of the presidential elections held in Kenya in 2007 in which both the incumbent, Mwai Kibaki of the Party of National Unity (PNU), and his main challenger, Raila Odinga of the Orange Democratic Party (ODM), claimed victory. Large-scale violence followed the disputed results and the ICC eventually commenced investigations into the crimes committed during the violence.

The Prosecutor presented two separate cases, with three accused persons in each. The first case was against William Ruto, senior member of ODM at the time of the violence, and who had since been appointed a cabinet minister in a power-sharing government which came into place following a mediation process necessitated by the violence. Those charged alongside Ruto were Henry Kosgey, the chair of the ODM, who had also become a cabinet minister in the power sharing government. The third accused person in the first case was Joshua Sang, a vernacular radio journalist based in Eldoret, the home area of both Ruto and Kosgey, and a major epicentre of the violence.

In the second case, other than Kenyatta, those charged were Francis Muthaura, the head of Kenya's civil service, and Mohammed Hussein Ali, who at the time of the violence was the Commissioner of Police.

In the end, the Court failed to confirm the charges against Kosgey in the first case but confirmed those against Ruto and Sang, both of whom have since been on trial. The Court also discharged Ali during the confirmation hearing, and only confirmed the charges against Kenyatta and Muthaura in the second case. Eventually, however, in March 2013, the Prosecutor also withdrew the charges against Muthaura, after a key witness had recanted his statement that linked Muthaura to the planning of the violence, a development which left Kenyatta as the sole accused person in the second case.