How Witness Tampering Fatally Undermined ICC Prosecution of Kenya’s President

Yesterday ICC Prosecutor Fatou Bensouda took the extraordinary measure of filing an application to indefinitely adjourn the trial of Kenyan President Uhuru Kenyatta in order to seek additional evidence to sustain the prosecution. At the core of the request is the ongoing issue of witness tampering that has haunted the ICC in Kenya for years.

Allegations of bribing, threatening and even killing potentially cooperative witnesses to the 2008 post-election violence date back to at least 2009. Several witnesses that provided testimony to UN officials have later refused to testify or simply disappeared. While international organizations like the UN Office of Drugs and Crime stepped in to help Kenya amend its domestic witness protection program and Western countries contributed to the ICC’s witness relocation program, gaps persisted. Kenya’s new Witness Protection Agency largely went unfunded while relocation offers only a temporary reprieve for witnesses facing harm.

By the time Deputy President William Ruto’s trial started earlier this year, several witnesses pulled out while others significantly changed testimony. Human rights groups have alleged such reversals are the result of high level pressure by political elites while others accuse human rights groups of coaching witnesses to lie to support the ICC charges.

It would seem that the status of witnesses has become just another front in the political battle between Kenya and the ICC. Case in point: shortly after the ICC unsealed an indictment against journalist Walter Barasa for witness tampering – the first arrest warrant issued by the court for offenses against the administration of justice – Kenyatta announced his intention to domestically prosecute 15 witnesses scheduled to testify against him since their testimony came from being participants of post-election violence and therefore criminal.

It is perhaps a bit remarkable that of all the situations currently before the ICC, Kenya would be the most problematic and possibly the most damaging to the court’s credibility. The eventual indictments issued by the ICC were the product of the agreement negotiated by African leaders and statesmen between the main Kenyan political parties which formed the Government of National Unity. Even then, Kenya was given over a year to establish a domestic tribunal to prosecute post-election violence perpetrators. Only when that failed to happen did the ICC fully take up the situation. No other situation under active prosecution has received as much leeway by the court as Kenya but nearly four years later, Kenya is proving to be the biggest political challenge the ICC has faced in its 11 year history.

But the entire situation highlights a fundamental concern when it comes to the ICC which is how to bring about accountability to those at the very top. As Stephen Brown and Chandra Lekha Sriram point out, big fish do not fry themselves. When all else fails domestically, that role falls to the ICC. The lack of accountability for political violence within Kenya since the first multiparty elections in 1992 is the reason why these cases are now in The Hague but so far the ICC has not shown that it is up to the task. Upholding the rule of law means more than just prosecuting those most responsible for atrocities; it also must mean protecting those who are willing to speak out for justice.

For now it appears barring substantial developments, the ICC’s case against Kenyatta will likely fall apart before it gets a chance to go to trial. If this happens it will not only harm the credibility of the court but also set a dangerous precedent for future defendants. Without considerable reform to the court’s witness protection procedures or consequences for Ruto and Kenyatta, witness intimidation will be a viable means of evading conviction by the ICC. There is a lot more on the line here than just a determination of the defendants’ guilt or innocence and it is long past time for the ICC to step up and act like it.