In 2010, the International Criminal Court began proceedings against six Kenyan officials, including the country’s current president, Uhuru Kenyatta, of crimes against humanity over their responsibility in the deaths of more than 1,100 people, the displacement of an estimated 350,000 others, and rapes and persecutions which followed contested presidential election results in late 2007.

But, as revealed by confidential documents obtained by Mediapart and analysed together with its media partners in the European Investigative Collaborations consortium, the ICC cases fell apart due in large part to the weakness of the investigation led by chief prosecutor Luis Moreno Ocampo who, after bringing charges against Kenyatta, subsequently campaigned behind the scenes for the Kenyan leader to escape prosecution. Stéphanie Maupas reports.

Kenyans are due to return to the polls on October 26th in a re-run of presidential elections held on August 8th, after Kenya’s supreme court in September annulled sitting president Uhuru Kenyatta’s victory over longstanding rival Raila Odinga, which it ruled was invalidated by “illegalities and irregularities”.

The opposition National Super Alliance movement is demanding an overhaul of the east African country’s electoral commission, and rolling demonstrations in the capital Nairobi in support of the call have been marred by clashes with police.

Tensions are running high, and many fear a repeat of the tragic events that followed the disputed presidential elections in December 2007, when Odinga narrowly lost to Mwai Kibaki (who Kenyatta succeeded in 2013). Over a period of two months, protests over the results led to widespread violence which left more than 1,100 people dead and hundreds of others injured, with an estimated 350,000 people displaced from their home regions.

The violence, marked by killings, rapes, deportations and persecutions, prompted the opening in 2010 of an investigation into suspected crimes against humanity by the International Criminal Court (ICC) in The Hague, and among the principal suspects was Uhuru Kenyatta.

That investigation has now been effectively shelved. Documents obtained by Mediapart (see the ‘Boîte Noir' section at the bottom of this page), and analysed together with its media partners in the journalistic collective European Investigative Collaborations (EIC), now throw a light on what became a major judicial fiasco, and notably reveal the role of the ICC’s former chief prosecutor, Luis Moreno Ocampo, in failing to bring to account the instigators of the horrific events in Kenya in early 2008. Moreover, they reveal that Ocampo, after he left the ICC, campaigned in secret to offer Kenyatta what he described as an "honorable exit" from the ICC procedure.

In December 2010, Ocampo, now 65, a former prosecutor in his native Argentina and who was the ICC’s first chief prosecutor from 2003 until 2012, identified six suspects in the case, equally comprised of members of the opposing parties: Uhuru Kenyatta, ministers William Ruto and Henry Kosgey, civil service head Francis Muthaura, radio station director Joshua Arap Sang and former police commissioner Mohammed Hussein Ali. Charges were later issued by the ICC against four of the six, while it dropped proceedings against Kosgey and Ali after deciding the cases against them were too weak.

In 2013, despite their indictment by the ICC for crimes against humanity, Uhuru Kenyatta and William Ruto teamed up to run on a joint ticket in new presidential elections in Kenya in that year, bidding respectively to become president and vice-president as part of a “Jubilee Alliance” of political parties backing Kenyatta. The pair represented the two dominant ethnic groups in Kenya, with Kenyatta a member of the Kikuyu and Ruto a member of the Kalenjin.

In a jibe at Kenyatta’s indictment by the ICC, Raila Odinga, Kenyatta’s opponent in the 2013 elections, as again in those this year, suggested that if his rival won the election he would have to run Kenya from the defendant’s box in The Hague via Skype. Kenyatta, meanwhile, proclaimed himself to be the guarantor of Kenya’s independence.

In December 2012, the office of new ICC chief prosecutor Fatou Bensouda, who had replaced Luis Moreno Ocampo in June that year, was busy with preparing its pre-trial report due in early January 2013, ahead of the opening of hearings due four months later, on April 15th. But the prosecution services had concluded that their principal witness – identified as “P0014” – in the case against Francis Muthaura lacked credibility, and advised that the charges be dropped. Bensouda appeared uncertain on what course to follow.

Since leaving the ICC, Ocampo joined a New York-based legal practice, but continued to follow events within the ICC where a jurist, who herself later left the court to become Ocampo’s personal assistant, kept him informed of the progress of the Kenya case.

After learning of the developments in late 2012, Ocampo contacted Sara Criscitelli, a former US Justice Department official who had joined the ICC as a prosecution lawyer and urged her to keep the case open, and to demand a postponement of the trial on the basis of Kenya’s lack of official cooperation with the ICC. “Blame them before they blame the prosecutor,” Ocampo advised her, in correspondence seen by Mediapart. “We need to defend the office of the prosecutor. If they filed before us that the case should be dismissed for lack of evidence we will be badly exposed.”

Just weeks earlier, on December 18th 2012, Mathieu Ngudjolo Chui, a rebel leader from the Democratic Republic of Congo, was acquitted by ICC judges at the end of his trial on charges of war crimes and crimes against humanity in 2003 because of insufficient evidence to establish his guilt “beyond reasonable doubt”.

Criscitelli was uncertain of Ocampo’s advise, and told him that, “If we file something that suggests that a State can defeat the court simply by refusing to cooperate, that will be the death of the Court as a whole”. But Decampo was concerned with saving both the prosecution case that he had initiated, along with his reputation. Between 2010 and 2012, he had largely personalised the procedure, becoming something of a star figure among many Kenyans pleased with his targeting of the country’s political elite. But Ocampo’s preparation of the case, like others during his time as ICC chief prosecutor, was considered weak and amateurish, barely convincing pre-trial judges.

At the end February 2013, his successor at the ICC, Fatou Bensouda, decided to contact him “before taking a decision”. Questioned by Mediapart on behalf of the EIC, Bensouda’s principal private secretary insisted that “prosecutor Bensouda did not seek the former prosecutor’s advice on any of these matters”. However, according to information gained by Mediapart, Bensouda consulted with Ocampo about the case on at least two occasions.

On March 11th 2013, ICC chief prosecutor Fatou Bensouda finally decided to drop the case against Francis Muthaura. Two days earlier, Kenyatta was officially declared Kenya’s president-elect, and Ruto his future vice-president, after the elections on March 4th. Kenyatta launched a counter-attack against the ICC, hiring high-flying lawyers to mount his defence, and contracting the services of London-based private security and intelligence firm Quintel Intelligence to carry out a parallel investigation into the charges against him. On the diplomatic front, he embarked on a costly lobbying campaign with members of the 55-nation African Union.

The culminant point of the campaign was a meeting of the United Nations Security Council in November 2013, when Kenya, backed by other African countries, demanded that the ICC drop its case. The meeting was tense, with African representatives accusing Western governments of neocolonialism. The latter were in an uncomfortable position, faced with either interfering in the ICC’s procedures or alienating Kenya which was a key ally in the fight against Islamist militant group al-Shabab in Somalia.

One week later, the Assembly of States Parties, which acts as the ICC’s overseeing management and legislative body, met in The Hague, where a US representative spoke in private of a solution in which everyone could be satisfied. This involved withdrawing the charges against Kenyatta without expressly clearing his name, while accusing the Kenyan government of failing to cooperate with the court. Kenyatta would thus be rid of the threat of trial while, it was hoped, the ICC would hold on to a degree of credibility.   

Although he was, since the summer of 21012, no longer with the ICC, the court’s former chief prosecutor Luis Moreno Ocampo had been secretly pursuing this strategy for the previous two months. As documents seen by Mediapart reveal, in September 2013 he corresponded with a staff member of New York legal practice Shearman & Sterling about how he had raised with his successor at the ICC, Fatou Bensouda, the idea of involving a group of lawyers, external to the ICC, to examine the evidence in the Kenyatta case. Shearman & Sterling, which had for several years trained ICC deputy public prosecutors, had proposed its services, but Bensouda had not responded.

Ocampo tried using his influence and contacted Sara Criscitelli, who had left the ICC six months earlier, although she remained based in The Hague. “Different people told me that the evidence is gone,” he wrote to her. “Witnesses recanted their testimonies or refused to appear. I understand the difficult political environment, but when there is no evidence, a prosecutor does not go to court,” adding: “To assist in the decision I was thinking that was a good idea to appoint an external panel of reviewers.” Criscitelli got in touch with ICC prosecution staff to find out more. “I asked,” she subsequently informed Ocampo. “So far not a problem.”

Questioned by the EIC, Sara Criscitelli said she vaguely recalled “sitting in on a discussion about one or both of the Kenya cases”. But she added that having left the court payroll several months earlier, she could not have expressed “a recommendation” that could “have influenced any decision”.

Meanwhile, the ICC’s cases against Kenyatta and Ruto, based on a poorly managed investigation, had begun crumbling with time. Potential witnesses against the pair were eliminated, others paid off, and others intimidated.

On October 13th 2013, Ocampo contacted former UN secretary-general Kofi Annan who, after leaving office in January 2007, acted as a mediator in the Kenyan crisis in early 2008. “I think it is time to find an honorable exit for Kenyata [sic]”, Ocampo wrote to Annan, in what was a remarkable reversal of opinion. Ocampo suggested to Annan that he should send someone to the ICC, who he advised should be “an African, not a lawyer” to meet with the prosecutor, their deputy, the judges and the president.

“Your envoy can just ask the question: is there any legal solution for Kenyatta before the trial?” added Ocampo, insisting however that the Kenyan head of state “should not be perceived escaping justice”. Kofi Annan, who did not show support for Kenyatta, off-handedly replied: “We are indeed living in interesting time,” advising, “let’s wait and see”.

Kenyatta’s trial, then due to open on November 12th 2013, was again postponed by the ICC on the advice of its prosecution department that the case against him was too weak.

In December 2013, Ocampo met in New York with Macharia Kamau, a Kenyan diplomat at the UN who was close to Kenyatta. Ocampo discussed the strategy to let Kenyatta off the hook. Kamau subsequently told Ocampo that he had met with the Kenyan leader’s brother who said he was willing to meet the former ICC prosecutor in New York.

But Ocampo insisted that only Fatou Bensouda could take a binding decision. “President Kenyatta should not look for a political solution because such [a] solution will affect his reputation and legitimacy,” Ocampo argued. “It will sound that he was guilty and is just abusing of his own power to escape from justice.”

Ocampo said that experience showed that “victims of these types of cases will pursue justice for decades and they will be supported by international NGOs”, proposing a “long-term strategy” for Kenyatta which in effect involved facing justice to better circumvent it. “Justice can include a process that solves the issue of his responsibility faster and with less controversies,” he explained.

Contacted by the EIC, Macharia Kamau declined to comment.   

In February 2014, Fatou Bensouda again obtained a postponement of Kenyatta’s trial, officially denouncing the lack of cooperation from Kenya. Her principal private secretary told the EIC that she “was not aware” of Ocampo’s activities behind the scenes, and “did not subscribe” to them.

In December 2014, at a meeting with ICC judges, Bensouda gave the case up, withdrawing the charges against Kenyatta. In April 2016, both William Ruto and Joshua Sang were cleared of charges. The case which the Kenyan press had once dubbed “the Ocampo Six” was wound up. Source: Media Part

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