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14 April 2016
By Angela Mudukuti

It’s an uphill battle prosecuting heads of state as government machinery often shields them from trial, but dismissal isn’t all bad, writes Angela Mudukuti.

The recent dismissal of the main Kenyan cases before the International Criminal Court (ICC) reveals the mixed bag of pros and cons that riddles the international criminal justice system.

First, it is a blow for the victims. Second, it exposes the challenges faced when trying to prosecute sitting heads of state. However, it confirms that the ICC is an impartial court that acts within the confines of the Rome Statute and will not hesitate to terminate proceedings that lack the requisite evidence.

Charges against Kenyan Deputy President William Ruto were dismissed when Trial Chamber V (a) ruled there was no case to answer to.

The prosecutor’s response states that “deliberate and concerted efforts to derail this case through witness interference” were to blame. Seventeen witnesses withdrew their co-operation after being threatened and intimidated.

The demise of the case is a devastating turn of events for the victims, but on the other hand, it is a true testament to the fact that the court is a judicial institution, seeking to adhere to the letter of the law and only proceeding when the requisite evidence exists. Given the vitriol that has been directed at it, this is an important fact to highlight.

The ICC has been unfairly accused of many things including targeting Africa and pedalling a Western agenda.

This criticism has affected the credibility of the court as well as its ability to secure co-operation from signatories and non-signatories alike.

While the ICC should endeavour to broaden the geography of its docket, accusing it of targeting Africa is an oversimplification and a misunderstanding of how the court operates.

The ICC has also been accused of failing to conduct fair trials. However, the fact that the prosecutor was able to withdraw charges against President Uhuru Kenyatta in December 2014, recognising that she no longer had the evidence she needed and the fact that the trial judges were able to dismiss the charges against Ruto is an indication of the objective legal standards applied by the cour

To date, the court’s record includes convictions, acquittals, failure to confirm charges and the dismissal of charges. The ICC, its prosecutor and its judges are mandated to follow the evidence and ensure that a fair trial is conducted and they have acted accordingly in the Kenyan cases.

If the ICC was indeed a biased institution designed to punish and incarcerate all who come before it then there would be no acquittals and no room to lawfully terminate cases that can no longer be sustained due to a lack of evidence.

Perhaps all of this will assist in shedding a positive light on the court. It is by no means a perfect institution and should be constructively criticised, but it should also be acknowledged when it exercises its mandate without fear or favour.

That is the good news, but there are two troubling realisations: the prosecution of incumbent leaders is incredibly challenging and the victims of their crimes continue to suffer.

In a similar fashion to the Ruto case, the Kenyatta case fell apart due to the fact that key witnesses recanted their testimony and others indicated they were too afraid to testify.

The prosecutor also indicated that the Kenyan government had not been as co-operative as she hoped with the request for telephone records and other documents she required for prosecution.

This reveals that prosecuting sitting heads of state can be an uphill battle given the state machinery they have at their disposal to compromise evidence and to minimise co-operation with investigations.

That said, it is vital that the court continues to remind perpetrators of such crimes that no one is above the law. The fact is that crimes that fall within the jurisdiction of the ICC (genocide, war crimes and crimes against humanity) are often perpetrated by those in power. It would be an untenable situation to refuse to pursue justice on account of an accused person’s official status.

Sadly, it is the Kenyan victims of the 2007/2008 post-election violence who get the short-end of the stick. Roughly 1 300 lives were lost and more than 600 000 people were displaced during the violence.

Murder, rape, and forced deportation are but a few of the atrocities experienced and witnessed by many Kenyans.

The victims have been left with nothing but the trauma of their dehumanising experience and the bitter taste of disappointment in the domestic and international justice system.

According to reports from human rights organisations, survivors continue to experience psychological and physical trauma, coupled with the challenge of socio-economic hardship. Their suffering continues as they see their attackers celebrate their escape from justice.

The charges against Ruto and Kenyatta can be reinstated should sufficient evidence materialise, but one wonders if that will ever take place.

* Mudukuti is an international criminal justice lawyer.

** The views expressed here are not necessarily those of Independent Media.

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