22.02.2018

LEAP Frontpage Forums LEAP Discussion Forum ICC suspends trial against Kenyatta What does this mean for the rule of law in Africa?

This topic contains 2 replies, has 3 voices, and was last updated by Profile photo of Wayne Jordash QC Wayne Jordash QC 3 years, 5 months ago.

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  • #6348
    Profile photo of LEAP
    LEAP
    Keymaster

    ICC suspends trial against Kenyatta – what does this mean for the rule of law in Africa?

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  • #6379

    The case against the Kenyan Head of State is perhaps the best example of the challenges facing international criminal justice, and of the widening chasm between the rhetoric and practise that states engage in when signing up to different treaty obligations.

    If I understand the current stage of the proceedings, the Prosecutor has moved the court for an until “until the GoK executes the Prosecution’s Revised Request for records in full.” The Chamber has not rule on the Prosecution’s Motion.

    Several questions questions immediately come to mind:
    – the propriety of the Prosecutor’s request given their admission that there is insufficient evidence for this case to proceed to trial;
    – the mechanism(s) which do or do not exist to deal with States Parties who violates their obligations under the Treaty;
    – the repercussions, if any, of non-compliance with an Order(s) of the Court.

    As for the rule of law – in a situation where orders of the court can be flouted or toyed with and ordinary powers of arrest do not exist, the question remains – WHAT can the court do?

    We are faced here with the realities of the limits of a legal/judicial process when faced with serious and consistent political challenge.

  • #6388
    Profile photo of Wayne Jordash QC
    Wayne Jordash QC
    Participant

    I agree with Shamila’s enumeration of some of the salient issues. However, the ICC Prosecutor also has some serious questions to answer, not only about the propriety of the current request, but about the viability of the case from the outset. Is the Prosecutor merely reaping the consequences of rushed charges, weak evidence and misplaced optimism that a case would eventually emerge during the trial process? She would not be the first international prosecutor to proceed with undue haste in the hope that a case might emerge from evidence that might be gathered in due course. Nor would the ICC be the first international court to allow a case to proceed on such a fragile premise.

    That is not to underestimate the difficulties that this case must have presented, not least of which has been the securing, maintenance and protection of increasingly reluctant witnesses and the political pressures to keep the show on the road. However, whilst it is in the interests of the Prosecutor to present the current impasse in terms of Kenya’s non compliance with international obligations, recent ICC prosecutorial history (Gbagbo, Lubanga, Mbarushimana, to name but a few) suggests that the OTP’s overall evidence gathering difficulties might not be so easily, or conveniently, explained away. These are the wider questions that the Chamber must now robustly and intelligently address so the victims and the public at large might understand where the problems in the current case reside and how in the future they might be avoided.

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