The ICC’s Prosecution of Kenya’s President Runs Aground

The effort to prosecute Kenyan President Uhuru Kenyatta for allegedly fueling deadly ethnic clashes six years ago suffered a potentially lethal blow Thursday after the International Criminal Court’s chief prosecutor, Fatou Bensouda, called for a postponement of the planned trial because of the defection of key witnesses.

The move came after African governments mounted a major diplomatic campaign to persuade the ICC to delay the trials of Kenyatta and deputy president William Ruto. African leaders argued that proceeding with the cases would complicate their effort to fight Islamist militants and prevent terrorists from mounting strikes like the bloody September 21 attack on the upscale Westgate Mall in Nairobi. *The Africans had already won one key concession. The governments that are party to the treaty establishing the court agreed to amend the court’s charter to allow defendants to participate in their trial via video link rather than attending each courtroom session.

Bensouda sought to assure Kenyans that her decision was not made as a result of political pressure. She insisted that she acted on purely judicial grounds, not on "extraneous considerations."

"In the last two months, one of the prosecution’s key witnesses in the case against Mr. Kenyatta has indicated that he is no longer willing to testify," Bensouda said in a statement explaining her decision. "More recently, on 4 December 2013, a key second witness in the case confessed to giving false evidence regarding a critical event in the prosecution’s case."

Bensouda said the defections weakened her case so much that she couldn’t "satisfy the high evidentiary standard required at trial." She said she would take time to obtain additional evidence and determine whether it was enough to restart the judicial process. It remained unclear what impact, if any, today’s decision would have on the trial of Ruto.

The International Criminal Court first launched an investigation into alleged crimes during Kenya’s bloody 2007 election, charging several Kenyans, including Kenyatta and Ruto, who was then out of power, of taking steps that fueled an outbreak of ethnic and sectarian violence that killed more than 1,200 people and wounded thousands more. Their trial marked the first prosecution of a sitting head of state after the court charged Sudanese President Omar Hassan al-Bashir with crimes against humanity and genocide against African tribes in Darfur. Bashir has refused to cooperate with the court.

So far, both of Kenya’s leaders have proclaimed their innocence and agreed to work with the court. The United States and other key Western powers thwarted appeals by the African Union, acting on behalf of Kenya, to seek a delay in the trial under the Article 16 provision of the Rome Statue, which established the International Criminal Court.

The prosecution of Kenya’s leaders poses a "threat to the peace … in light of the prevailing and continuing terrorist threat existing in the Horn [of Africa] and East Africa," Kenya’s U.N. ambassador Macharia Kamau wrote to the U.N. Security Council back in November. Kenya, he said, "seeks a decision that no investigation or prosecution shall be commenced or proceeded" against Kenya’s leaders.

Court advocates cited an ongoing campaign within Kenya to intimidate witnesses capable of fingering the Kenyan leaders. "This is the right, professional thing to do, but it must have been a wrenching decision," said David Kaye, a former State Department expert on the ICC and professor of international law at the University of California, Irvine Law School. Kaye said that today’s decision showed that "witness intimidation by the defense, or people associated with the defense, has taken its toll,"and that he believed the prosecutor may be setting the stage for" withdrawing the charges altogether."

*An earlier version of this article incorrectly stated that the ICC court ruled last month that defendants could participate in the trial via a video link. It was the states parties to the treaty establishing the court that decided to permit defendants to participate via a video link.

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