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| Phoebe Oyugi, Case Manager, Ble Goude Defence Team |
The
International Criminal Court (ICC) faces tremendous challenges with regard to
collection of evidence to be used at trial, language barrier, lengthy trials,
long physical distance between the scene of crimes and the seat of the ICC,
lack of state cooperation, and witness interference, among others. This is well
illustrated, for example, by the challenges faced by the ICC during the prosecution
of the Kenyan cases, that is, the cases against President Uhuru Kenyatta
(Kenyatta) and Deputy President William Ruto (Ruto), both charged with crimes
against humanity. These cases were among the most high profile cases at the ICC
for many reasons among them being that it was the first time that a sitting
head of state and his deputy appeared before an international tribunal. They
therefore generated a lot of interest in the international community. Yet, both
cases were terminated prematurely due to insufficient evidence.
In
December 2014, the Prosecutor of the ICC having been ordered by the Chamber to
either withdraw the charges against Kenyatta or commence trial, chose the
former cause of action because she had insufficient evidence. Similarly, the charges
against Ruto were vacated in April 2016 because the judges could not decide
whether the insufficiency of evidence was due to the fact that there was simply
no evidence to be found; or whether it was a result of witness interference. In
both instances the Prosecutor blamed the insufficiency of evidence on the
Kenyan Government, headed by the two accused persons, accusing it of failure to
cooperate with her in obtaining evidence and of making deliberate attempts to
frustrate the cases.
Because
the Prosecutor was not able to present sufficient evidence, the Kenyan cases
ended in a lose-lose situation. The ICC was unable to establish the truth or
enforce international justice in fulfilment of its mandate; the accused persons
still have the suspicion of crimes against humanity hanging over their heads
and the possibility of being prosecuted afresh; and the victims received
neither closure nor reparations. This lose-lose situation raises the question
of whether such a situation could have been remedied through compromise.
This
brings to mind the Anglo-American concept of plea bargaining, a compromise,
which in its simplest form involves an agreement between the Prosecutor and the
accused person where a guilty plea from the latter is obtained in exchange for
a reduced sentence and/or the accused person’s cooperation in the
investigations. This practise is not a novelty before international criminal
institutions. International tribunals such as the International Tribunal for
the Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR)
have resorted to plea bargaining by, for instance, reducing sentences in
exchange of guilty pleas and cooperation by accused persons. This was used in
several cases, for example, the Prosecutor v Todorovic and
the Prosecutor v Sikirica at
the ICTY, as well as the Prosecutor v Serushago and the Prosecutor v Ruggiu at
the ICTR. This eventually led to the inclusion of Rule 62 ter of the ICTY Rules
of Procedure and Evidence (RPE) which regulates plea agreements at the ICTY.
However,
the concept of plea bargaining is not used at the ICC. The main obstacle to the
introduction of the practice of plea bargaining before the ICC is that it seems
to negate the principles upon which the Court is founded. A similar concern led
the ICTY judges to reject, at first, the suggestion to introduce this practice at
the ICTY. However, due to the
particularities of international criminal proceedings, such as lengthy, complex
and costly proceedings, plea bargaining was eventually introduced, and a number
of cases were settled in this manner at both the ICTY and ICTR. The ICC has
experienced and continues to face similar challenges as those faced by the ICTY
and ICTR, which necessitated the introduction of plea bargaining in these two
Courts. This, therefore, necessitates an exploration of plea bargaining as a
potential solution to some of the challenges bedevilling the ICC.
If plea
bargaining were permitted at the ICC, it might have been employed in the Kenyan
cases, mentioned above, to result into a potential win-win situation. The
Kenyatta and Ruto cases, just like all cases at the ICC, had three participants
namely the Prosecutor, the Defence and the victims of the Kenyan Post-election
Violence (PEV), all who had conflicting interests. These conflicting interests
may be summarised as follows: on one hand, the Prosecutor’s duty was to prove
the charges against the two accused beyond reasonable doubt with a view to obtaining
a conviction against the two; but she was unable to secure sufficient evidence
partly due to the power and influence of the two accused within the situation
country. She, however, enjoyed the support of the ICC and most of the international
community, except the African Union (AU).On the other hand, both Kenyatta and
Ruto wanted to be acquitted of all the charges against them and for their names
to be cleared. Being the President and Deputy President of Kenya respectively, they
had the power to potentially hinder the investigations, influence witnesses and
influence the AU and most African states against the ICC. They seemed willing
to do all it took to prevent the cases from proceeding at the ICC. Lastly, the
victims of PEV wanted someone to take responsibility for the horrible crimes
which were committed against them and to receive reparations.
The
fact is that the two accused persons literally held the keys to Kenya, the one
place which contained all the evidence the Prosecutor needed to establish the
cases against them. It was not realistic for the Prosecutor to expect them to
cooperate in helping her gather evidence against them. The accused persons also
held the fate of the victims in their hands and had the power to put in place a
national system of reparations if they so wished. For this reason, I think it
would have been prudent to enter into discussions with them with a view to
reaching a plea agreement. As part of the plea deal, perhaps Kenyatta and Ruto would
have been required to take responsibility for some of the crimes that were
committed during the PEV. As Kenyan leaders who enjoy massive support of the
members of their respective political constituencies, even if they did not
incite people to violence, I believe that they had it in their power to stop
the violence or to reduce the effects thereof. In return, the Prosecutor would
have offered to reduce or withdraw the charges against them. Alternatively an
agreement would have been reached whereby upon conviction, the sentences would
not include imprisonment. Furthermore, it would also have been prudent for the
Victims’ Representative to enter into negotiations with the two accused persons
with a view to setting up a reparation system to the benefit of all the PEV
victims. The Kenyan government would have been required to, for example, ensure
the resettlement of all the victims, some of who still live in camps as
internally displaced persons to date.
Admittedly,
this situation seems like a bargain of justice. However, in my view it seems
like a practical solution in that it would have ensured that someone took some
responsibility for the crimes committed and it would also have resulted in the victims’
reparation. As a result of the plea deal, Kenyatta and Ruto may also have had
their names cleared and the ICC would have been unable to recommence cases
against them in future. This to me seems like a win-win situation compared to
what actually occurred.
Plea
bargains are used all over the world especially in the United States where over
90% of
federal convictions are achieved through guilty
pleas. Furthermore, as shown above, plea bargaining has been used by other
international tribunals, namely the ICTY and the ICTR, to settle cases. By not
considering this potential solution, the ICC was unable to deliver the promise
of international justice to the Kenyan people, the Prosecutor was deeply
embarrassed by her inability to close these two high profile cases, Kenyatta
and Ruto still have suspicion hanging over their heads and the possibility of
future prosecution, and the victims did not receive any reparation. This is a very
undesirable lose-lose situation which, in my opinion, ought to have been
avoided by resorting to plea bargaining as described above.
