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Monday, August 8, 2016

Exploring the Concept of Plea Bargaining as a Potential Solution at the International Criminal Court: The Kenyan cases

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.

Guest Post by Phoebe Oyugi (Phoebe Oyugi is a Kenyan lawyer who specialises in International Criminal Law, International Human Rights Law and International Humanitarian law. She currently works as a case manager and consultant in the Defence team of Charles Blé Goudé at the International Criminal Court)

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