Kenya: Victims’ Lawyer Turns the Heat Up On Bensouda and Uhuru

Victims’ legal representative Fergal Gaynor wants a review of ICC Chief Prosecutor Fatou Bensouda’s decision not to actively pursue investigation into Uhuru Kenyatta PEV role. Fergal Gaynor, the legal representative of victims in the Uhuru Kenyatta case, wishes ICC Chief Prosecutor Fatou Bensouda was better at her job. That’s perhaps the biggest take away from his latest filing before the ICC’s Pre-Trial Chamber II, requesting judges to review the decision by the Office of Prosecutor (OTP) not to suspend its investigation into Kenyatta’s role in the 2007/08 post-election violence.

Gaynor doesn’t mince his words in the 49-page document currently before Judge Cuno Tarfusser (Presiding), Judge Marc Perrin de Brichambaut and Judge Chang-ho Chung. Before the Kenyatta case collapsed, Gaynor – like many of the victims’ lawyers – aligned himself with the OTP. In this new filing, however, he cuts ties with Bensouda and her team in the most public way possible, accusing them of being “ineffective” and of “prosecutorial surrender and inaction”.

Failing victims

Gaynor’s main charge against Bensouda is that she raised the expectations of victims, only to disappoint them by not thoroughly investigating the case against Kenyatta. He says “thousands of victims of crimes against humanity were led to believe in a justice process at the Court for over five years, to endure three failed prosecutions without a single day of trial”. He therefore argues that since the “Statute places the victims at the centre of the justice process”, the OTP’s decision to end its investigation cannot be allowed to stand unchallenged.

The victim’s lawyer now wants the judges to interrogate the OTP’s actions since taking up the case to determine if indeed it did everything possible to deliver justice for the victims or if it is guilty of “abuse of office.”

The PEV victims that the OTP has disappointed the most, according to Gaynor, are those who suffered sexual and gender-based crimes:

“Perhaps the prosecution’s most poignant and unacceptable failure is in respect of victims of sexual and gender-based crimes (SGBC) in Kenya. Its decision not to actively investigate followed years during which legitimate expectations of justice at the ICC were raised in the minds of those victims. The prosecution has profoundly failed to fulfil those expectations,” he says.

Bensouda didn’t push hard enough

Article 54(1) of the Rome Statute requires the OTP to undertake an “effective” investigation and prosecution. Gaynor feels the prosecution fell short of this mandate in the Kenyatta case. As proof, the victims’ lawyer cites the OTP’s “failure to use the powers conferred upon it by the States Parties” and its abandoning of a “partly-investigated case”. Gaynor says a prosecution can only be considered “effective” if the OTP takes advantage of measures open to it under Articles 54(2) and (3), 56, 57(3), 64(6), 69(3), 70, 72(5), 72(7), 87(7) and Article 93(1).

On Article 87(7), Bensouda has long complained that the Kenyatta case (as well as that against his two co-perpetrators Mohamed Ali and Francis Muthaura) fell apart because the Kenyan government stonewalled her, but Gaynor says that excuse doesn’t wash. The victims’ lawyer contends that to ensure Kenya’s cooperation, the OTP should have taken early advantage of 87(7), which allows for referral to the Assembly of States Parties for failure to comply with a request for cooperation:

“State obstruction of justice is the principal reason for the collapse of the case against all three accused, and it required a firm response that the prosecution failed to provide”, argues Gaynor.

“But the prosecution failed to make any article 87(7) request until November 2013, after the cases against Mr Ali and Mr Muthaura had already collapsed”, he adds in the filling made last week.

Gaynor makes several tentative passes at the point that Bensouda didn’t push hard enough to achieve justice in the Kenyatta case. For example, he says it’s “striking, given the gravity of the witness-tampering in the Kenya cases” that the OTP has “not publicly instituted any prosecutions relating to bribery or intimidation of witnesses in this case”. Gaynor further wonders aloud why, despite making witness interference claims against Kenyatta and Muthura, the OTP “did not file any public applications under Article 70 to deal with the serious problems it had identified”.

The victims take

Also included in Gaynor’s filing is an annexure (Annex 1) containing the views of 702 PEV victims collected by the legal representative of victims and his field staff between May and June 2015. Just as Gaynor says in the request for review, filed last week, many of the victims are angry at the ICC:

“We are still suffering, and it seems that our fate has been sealed. We were promised that we would eventually get some compensation but this never happened. Since the case has been terminated, what are you leaving us with? Do we get to benefit for having attended all these meetings?” asked one female victim, while another male victim just wanted to be left alone:

“The ICC is the worst institution ever. I lost eleven members of my family [in a single incident during the PEV]. The Kikuyus and Kalenjins were given land, and in addition to that, the government gave them Kshs. 400,000. Now that this case has been terminated, we should just be left alone, and you should never call us for another meeting.”

Despite the general climate of fear regarding the Kenyan ICC cases, one female victim said she would still be willing to testify:

“Our lawyer informed us that there were some witnesses who withdrew from the case. How come we as the victims have never received an opportunity to testify? We know what happened, and we therefore have the first account of what transpired. Is there any possibility in the future for the victims to testify?” she asked.

 – Ishmael Bundi is a pseudonym for a Nairobi-based writer