Steven Kay QC responds to the Prosecutor’s statement dated 26 November 2019 on the expert review of the Kenya situation

28 November 2019

The Prosecutor’s statement dated 26 November 2019 on the external expert review and lessons drawn from the Kenya situation claims to be a well-intentioned attempt to demonstrate the OTP’s bona fides attempt to engage in “honest self-reflection”. The sentiment is welcome.

As I wrote in 2015, following the OTP’s withdrawal of the charges against President Kenyatta, the general nature of the evidence in the case against him was based upon hearsay, rumour and gossip, and was without proper foundation. The OTP’s failure properly to investigate the truth, as it was required to under Article 54 of the Rome Statute, led it to construct and pursue a case against him that relied upon witnesses that it knew – or ought to have known – were proven liars. The Kenyatta Defence sought repeatedly, and even prior to the confirmation hearing in 2011, to draw to the OTP’s attention to the fundamental issues with its evidence and the credibility of its witnesses.

A report published in 2015 by the Kenyatta Defence demonstrated, objectively, that the OTP (under both Mr Ocampo’s and Ms Bensouda’s stewardship) wilfully shut it eyes to the flaws in its own case and ignored a raft of expert evidence served on it by the Kenyatta Defence, including the evidence of mobile phone cell site technicians demonstrating that the OTP’s only remaining ‘eye’ witness was lying about his presence at key events. It is also clear that the OTP failed to disclose key material in its possession undermining OTP-4 – the only witness providing direct evidence of President Kenyatta’s alleged participation relied upon to confirm the charges – and thereby violated its duty under Article 67(2) of the Statute. None of these issues are dealt with in the document published on 26 November. The experts recognised that Mr Ocampo did not appreciate that “it is only through effective prosecutorial action, based on law and facts that collateral consequences, such as bringing peace to the region or demonstrating the relevance of the ICC, can properly be achieved”. Ms Bensouda herself was therefore under a duty to conduct a robust review of the case when she was appointed Prosecutor in 2012. She did not do this. One would expect a truly objective report to address this difficult yet glaring issue.

The OTP’s failure to publish the full report for “operational reasons” is unfortunate. If the Prosecutor’s intention to engage in honest self-reflection is as meaningful as claimed, it seems difficult to understand why publication of a redacted version of the full report, as opposed to simply its executive summary, would not have been possible. Nevertheless, paragraph E.18 of the team of experts’ Executive Summary –buried at page 25 of the OTP report – reveals an effective admission that the case against President Kenyatta would never have prevailed and was not dropped due to witness interference. This is a startling admission that undoes the attempts of the OTP to blame others for what was a doomed case from the beginning.

Turning to the Prosecutor’s statement itself, it is noteworthy that the Prosecutor takes such limited responsibility for the OTP’s failures in the Kenya situation, and seems so willing to lay the blame for them at the feet of the former Prosecutor. The former Prosecutor, in turn, rejects the blame attributed to him. Yet Fatou Bensouda has been the ICC’s Prosecutor from June 2012 and was Deputy Prosecutor or Prosecutor throughout the currency of the Kenya situation. Both Ms Bensouda’s as well as Mr Ocampo’s reluctance to accept personal responsibility for the operational catastrophe it came to become is regrettable for an institution specifically entrusted with the determination of individual responsibility.

There are also worrying signs that some key lessons simply have not been learned. The Prosecutor claims that the OTP “spared no effort to advance and salvage the cases” in the situation. Criminal prosecutions are not missions, “salvaged” with zeal. A dutiful prosecutor will simply follow the evidence where it leads her.

It is also remarkable that certain recommendations which might seem axiomatic in the context of criminal litigation -  for example that the OTP should increase the number of staff with proven experience in complex criminal cases -  do not appear to have been fully accepted (“Staff having the right law enforcement background will be of obvious value, but the OTP also has to be careful to avoid overly rigid hiring practices…”). Similarly, the team of expert’s recommendation that the OTP consider the feasibility of investigating during preliminary examinations is not accepted fully, although the qualifier that this has been OTP policy “until now” is to be welcomed.  Fundamental yet basic recommendations with respect to the confirmation, pre-trial and trial phases, as well as witness credibility are all stated to “fully conform” to the OTP’s current working methods yet no explanation is given as to how or why this is the case or how approaches have changed since Kenya. The Prosecutor might have taken this opportunity to show rather than simply to tell.

Steven Kay QC

28 November 2019

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