Withdrawal of Kenyatta case highlights ICC prosecution weakness

17 December 2014 by Stephanie van den Berg and Janet H. Anderson, The Hague (The Netherlands)

The withdrawal of charges against Kenya’s President Uhuru Kenyatta two weeks ago has raised questions about the capacity of the International Criminal Court (ICC)’s Office of the Prosecutor (OTP) to secure evidence against suspects if states are unwilling to cooperate.

Image caption: 
Kenya's President Uhuru Kenyatta at the ICC for a status conference in October 2014 (Flickr/ICC-CPI)

On 5 December, in the ICC’s most high-profile case yet, prosecutor Fatou Bensouda announced she was dropping the charges against Kenyatta. The first sitting head of state to appear before the ICC had been charged with crimes against humanity for his alleged role in the 2007-2008 post-election violence that swept the East African country, leaving over a thousand people dead and many more displaced.

The prosecutor’s decision came after the trial chamber refused her request for an adjournment in order to secure more evidence. The need arose as a number of key witnesses had withdrawn or recanted their evidence and the Kenyan government did not hand over solicited documents, such as financial and phone records.

While judges chided Nairobi for not complying with its duties to the court, they decided against a formal finding of non-cooperation, which would trigger a referral of the matter to the ICC’s Assembly of States Parties. The prosecution has since filed for leave to appeal that ruling. 

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