ICC: Kenya Deputy President's Case Ends

The two judges who formed the majority of the three-judge panel agreed that the prosecution had failed to show sufficient evidence to require the defendants to mount a case. But one judge would have acquitted the defendants, while the other would have declared a mistrial because of the "serious tainting of the trial process by way of witness interference and political intimidation of witnesses." Given witness interference, however, they both agreed to vacate the charges to leave open the possibility that the ICC prosecutor could bring charges again. The dissenting judge would have allowed the case to continue. The decision may be subject to appeal.

"Sadly, this case will be remembered for an apparent campaign to corrupt witnesses," said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. "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."

A previous ICC ruling had suggested that there had been systematic efforts to corrupt witnesses, including through bribery. According to the ICC prosecution, at least 16 of its original 42 witnesses withdrew, most citing threats, intimidation, or fear of reprisals.

ICC judges charged Ruto and Sang with crimes against humanity in 2012. Ethnic-based killings and reprisals that often appeared to be meticulously organized, as well as police use of excessive force against protesters, killed at least 1,100 people during Kenya's 2007-2008 post-election violence, injured thousands more, and forced as many as 650,000 people from their homes. Officials say there were at least 900 cases of sexual violence, but that is most likely an underestimate.

Charges in a parallel ICC case against President Uhuru Kenyatta were officially withdrawn in 2015, and cases against three other Kenyans also failed to go to trial before the ICC.

An ICC pretrial chamber issued arrest warrants for three people – Walter Barasa, Paul Gicheru, and Philip Kipkoech Bett – on charges of witness tampering in the Ruto and Sang case. The first warrant, against Barasa, was issued in August 2013. An ICC statement described the case as stemming from an alleged "criminal scheme devised by a circle of officials within the Kenyan administration." Kenyan authorities have not surrendered the three men to the ICC. A legal challenge to Barasa's surrender is before the Kenyan Court of Appeals.

The trial chamber had admitted into evidence the out-of-court statements of four witnesses who recanted on the stand, after determining that the witnesses had been subjected to interference, as well as the statements of a fifth witness who disappeared. But the appeals chamber ruled that use of the evidence in the case was incompatible with fair trial rights.

A man claimed by Ruto's defense as a witness was apparently murdered in late December 2014 or early January 2015. Kenyan authorities have not made any results of investigations into his death public.

"People who stepped forward to testify in this case put themselves at risk, while bribery and threats interfered with the search for the truth," Evenson said. "Barasa, Bett, and Gicheru should be surrendered to the ICC but the allegations against them may only be the tip of the iceberg."

The Kenyatta administration has pursued an intense campaign to undermine the ICC, lobbying the African Union and other regional groups, the United Nations Security Council, and the ICC Assembly of States Parties. Kenya's leaders failed to prevent and even encouraged hostility toward human rights activists pushing for justice for the post-election violence. The government, for example, did not address hate messages circulated online against activists, even though the identities of some of those behind the blogs were known to authorities.

ICC judges are still to decide whether Kenya breached its obligations as an ICC member country by withholding Kenyatta's financial and other records in the case against him. Even with the closure of this case, pending any appeal, the ICC's jurisdiction regarding the post-election violence will remain in place.

The absence of convictions before the ICC continues a cycle of impunity in Kenya. Those responsible for political violence in Kenya in 1992 and 1997 escaped justice, and Kenyan authorities broke their promises to hold to account in national trials those responsible for the 2007-2008 post-election violence. Kenyan security forces continue to be implicated in extrajudicial killings, torture, disappearances, and arbitrary detention. Impunity remains a significant risk factor for future election-related violence, Human Rights Watch said. The next national elections are expected in 2017.

"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," Evenson said. "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."

A total of 954 victims were registered to participate in the ICC case against Ruto and Sang, while 839 victims participated in the ICC case against Kenyatta.

Hundreds of women and girls who were raped during Kenya's 2007-2008 post-election violence struggle with devastating physical and psychological health conditions, poverty, and social exclusion. Children born of rape also face special challenges including stigmatization and verbal and physical abuse. In March 2015, President Kenyatta announced a fund of 10 billion Kenyan shillings (US$9.8 million) to provide "restorative justice" for victims, but a year later, no money has been released from the fund.

While this fund should not be used in place of criminal accountability, the initiative could be a crucial opportunity for victims of the post-election violence, including rape and sexual violence victims, many of whom still have urgent medical needs. The government should follow through with the promise of reparations, provide services, and fully acknowledge victims of sexual violence and ensure that they are consulted in the design of the reparations process. The process should be in line with international good standards and practice, Human Rights Watch said.

The ICC should continue to draw lessons from its work in Kenya. The court appears to have been unprepared to deal adequately with witness protection needs arising out of the Kenya situation. The ICC registry is restructuring witness protection mechanisms. And the ICC prosecution reported that the challenges it encountered in its Kenya investigations have prompted strategy changes.

"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."