Ocampo underestimated powerful, well-funded targets in Kenya case, new report reveals

International Criminal Court (ICC) Prosecutor Fatou Bensouda has released a damning report over the collapse of the Kenya case.

Aside from claims of witness tampering, Bensouda cited interference and lack of sufficient cooperation from the Kenyan government.

In 2010, ICC Prosecutor Moreno Ocampo had been adamant that alleged perpetrators and financiers of the 2007/8 post election violence would face the law, to serve as a lesson to other would-be warlords.

Four years later, however, the hyped cases he had initiated against six Kenyan suspects collapsed in quick succession, dashing hopes of justice for the post-election violence victims.

In the latest report from Bensouda that was released on Tuesday, November 26, 2019, an accusing finger is pointed at the Office of the Prosecutor (OTP).

The report conducted by independent external experts said the Kenyan situation presented unique challenges for the OTP.

The experts opined that ICC under Ocampo underestimated the ability of the powerful, high level accused persons in these cases to undermine the integrity of Prosecution.

“Indeed, Prosecutor 1 (Ocampo) dismissed, without explanation, concerns voiced to him about whether the ICC could take on targets that were powerful, sophisticated, well-funded and organized, given the problems within the Victims and Witnesses Unit (VWU) at the time,” reads the report.

On December 4, 2014, Bensouda had released a statement citing her frustrations with the Kenyan government in relation to President Kenyatta’s case.

At the time, she said this hampered investigations into the 2007/8 post-election violence and ultimately frustrated the case.

In her statement, Bensouda accused the government of an unprecedented campaign on social media to expose the identity of protected witnesses in the ICC cases.

“Concerted and wide-ranging efforts to harass, intimidate and threaten individuals who would wish to be witnesses,” Bensouda said.

The report further noted that three factors contributed most significantly: the leadership style of Prosecutor Ocampo and Bensouda, cumbersome decision making as well as staffing practices in undermining the effective functioning of all aspects of the Kenya cases.

The latest report confirms Bensouda’s allegations saying the prosecutorial process was also hampered by deadlines set by Ocampo based on considerations other than sound prosecutorial practice.

“These deadlines prevented completion of the legal analysis at the preliminary examination stage, and resulted in premature application for authorization to open an investigation into the Kenya situation, charging decisions, applications for summonses to appear, and Confirmation of Charges (CoC) hearings,” reads the report.

Bensouda further noted that they took too long in seeking the assistance of the Trial Chamber to compel cooperation from the Kenyan Government.

This, she said, resulted in contradictory approaches like trying to persuade the authorities to cooperate.

Witness credibility was also a major concern as most of the witnesses were “insiders” and others had been relocated to the same locations for extended periods of time.

This raised the possibility that they had talked among themselves and tainted each other’s evidence.

“As a result, many individuals on whom the OTP planned to rely as witnesses either recanted their earlier statements or refused to appear before the Court,|” read the report.

The experts further indicated that the Kenyan government failed to support ICC investigative activities.

Instead, it either allowed interference with witnesses inside and outside of Kenya and with OTP activities in Kenya, including surveillance of OTP investigators.

“ It refused Requests for Assistance thereby hampering the Prosecutor’s ability to access potential evidence, or imposed such conditions or access as to, in reality, make that access so cumbersome as to be unworkable,” read the report.

The government was faulted for the lack of political will to assist the ICC in providing protection measures; in particular, relocation.

A concern that domestic and international non-governmental organizations (NGOs) and other international actors exercised too much influence over Ocampo’s decision-making was expressed.

Notably, Ocampo was not interviewed during this process.

Three years after the cases came to a halt, an investigation by European media partners unearthed what was termed ‘a major judicial fiasco.

Ocampo was put on the spot for failing to bring to bring to account instigators of the events that almost brought Kenya to its knees.

Ocampo was on the spot for allegedly negotiating a secret termination of President Uhuru Kenyatta’s case at the Hague-based court, to save face over shoddy investigations.

An elaborate probe by media partners in Europe revealed that Ocampo, months after he left office and passed the baton to Fatou Bensouda, spearheaded a plan to withdraw President Kenyatta’s charges.

This he allegedly did through blaming the Kenyan government for failing to cooperate with the court, before the judges could terminate the case for lack of evidence.

The ‘Ocampo-leaks’ by the European media partners revealed the former prosecutor’s shoddy investigations into the Kenyan cases, despite hogging publicity and spending millions of dollars, in procurement of witnesses.

The team however interviewed some 30 current and former OTP staff members representing all the major Divisions and some Sections, such as the Legal Advisory Section (LAS), and reviewed various OTP documents and press releases, as well as OTP filings and judicial decisions.

Out of the six suspects who were charged at ICC; two suspects were discharged at the conclusion of the confirmation of charges hearing, another accused case was withdrawn without prejudice, during the pre-trial stage and the charges against the last accused in that case were withdrawn without prejudice on the eve of trial.

The trial of the two remaining accused in the other case went ahead, but their charges were vacated by the Trial Chamber, at the close of the Prosecution case, on a no-case-to-answer motion, but without prejudice to the Prosecution.