Wheel of fortune at the ICC

The month of March started in a dramatic way for the International Criminal Court (ICC) in The Hague. First the Kenyan voters elected two suspects as president and vice-president. Though the victory was – with 50,07 percent – extremely narrow, there are signs that the ICC-charges actually stimulated Kenyans to vote for the accused Uhuru Kenyatta and William Ruto.

Then suddenly on Monday afternoon, 11 March 2013, breaking news from The Hague. There is an explosion of tweets with hashtag #ICC. Chief prosecutor, Fatou Bensouda announces in a video message that she withdraws the charges against top official Francis Kirimi Muthaura, whi was secretary to the Kenyan cabinet and head of public service. The trial is cancelled.

What started as a high profile case with originally charges against six Kenyan suspects in 2011, has been crumbling over time. Ocampo Six (named after the ICC’s previous chief prosecutor Luis Moreno-Ocampo) changed first into Ocampo Four (when the judges said that the evidence against two Kenyans was insufficient), and had now changed in Ocampo Three.

The reasons to drop the charges against Muthaura are shocking. Bensouda points to ‘the fact that several people who may have provided important evidence regarding Mr Muthaura’s actions, have died, while others are too afraid to testify for the Prosecution.’ Her Office was blocked from doing its work. ‘The disappointing fact that the Government of Kenya failed to provide my Office with important evidence, and failed to facilitate our access to critical witnesses who may have shed light on the Muthaura case.’ But what really forced Bensouda to drop the case when the main witness against Muthaura had ‘recanted a crucial part of his evidence, and admitted to us that he had accepted bribes.’ Earlier Besouda had already explained to the Kenyan media that this ‘witness number four’ had been bribed by representatives of Kenyatta.

It is a dramatic moment in the history of the ICC, which seems to have trouble in getting its cases properly selected and investigated. (See my feature with an analysis on the problems the court is facing, in the Dutch magazine De Groene Amsterdammer – 21 March 2013).

Last Monday (18 March) the court held a status conference on the implications of the lost case against Muthaura for co-accused Uhuru Kenyatta. Defence lawyer Steven Kay explained that ‘witness number four’ was also crucial for the charges against his client – that in his opinion were built on quick sand anyway. Also the judges were wondering how strong the case against Kenyatta, being charged as co-perpetrator to a common plan, still was now that the other co-perpetrator (Muthaura) was off the hook. The prosectors said there was no problem. They stood firm, but their position has been severely weakened. (Reports in Kenyan media suggest that another witness, who would testify against Ruto, asked the court to be taken of the list).

Then the wheel of fortune turned. While at my office I could no longer follow the hearing because the video-streaming from the court had collapsed, I could turn my attention to new breaking news coming in. This time from Rwanda. That morning astonished American diplomats and personnel had seen how a man, who turned out to be Bosco Ntaganda wanted by the ICC for war crimes and crimes against humanity, walked into the U.S. Embassy in Kigali. ‘He specifically asked to be transferred to the ICC in The Hague,’ Victoria Nuland, spokesperson of the State Department declared later. ‘We are consulting with a number of individuals and governments, including the government of Rwanda, in facilitating his request.’

The ICC welcomed the surrender of the suspect who had been at large for many years. Well into March, finally some good news.