WHAT NEXT? Kenya's Deputy President William Ruto

Prosecutor Luis Moreno-Ocampo squandered an opportunity to nail Deputy President William Ruto over the 2007-2008 post-election violence, a report says.

The report released by Ocampo’s successor at the International Criminal Court, Fatou Bensouda, reveals that the Office of the Prosecutor (OTP) had enough evidence to succeed in Ruto’s case.But a bungled investigation, which was also marred by witness interference, meant that there would be no justice for Kenyans who were maimed, killed or forced to flee their homes, says the report.Conversely, the report reveals that even without witness interference, Ocampo’s evidence against President Uhuru Kenyatta, former police boss Mohamed Ali, former Head of Civil Service Francis Muthaura, radio journalist Joshua Sang and former Cabinet minister Henry Kosgey was flimsy at best, and it would not have withstood close judicial scrutiny.Experts conducted a post-mortem of the investigation 12 years after the poll chaos, which saw more than 1,100 people killed and over 600,000 residents displaced.

Their report was released Tuesday night and it criticises Ocampo for doing a shoddy job.“At trial, the prosecution lost many of its witnesses, who either recanted or refused to appear. The trial teams attempted to deal with this serious blow to their cases by quite rightly requesting the judges to admit the prior statements of these witnesses, but were ultimately unsuccessful,” states the report.It continues: “Absent the witness interference campaign, it is very possible the prosecution would have been successful in the case against Ruto. Even absent this interference, it is much less likely the prosecution would have prevailed in the other cases.”

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The experts who drafted the damning report interviewed at least 30 current and former OTP staff members representing the court’s major divisions and some sections such as the Legal Advisory Section.The team also reviewed various OTP documents and press releases, as well as OTP filings and judicial decisions.On December 14, 2010, the retired prosecutor named six Kenyans as bearing the greatest responsibility for the post-election violence and promised to make an example to the world out of their case.Pressure on OcampoThe report reveals that domestic and international non-governmental organisations and other international actors exerted pressure on Ocampo and crowded out his decision-making.

The former prosecutor is also accused of pitting junior and inexperienced staff against an elite team that had been fronted by the six suspects.The problems that plagued the cases, the experts state, boiled down to Ocampo’s autocratic leadership and decision-making style, staffing practices and office structure.They also focused on conduct of the preliminary examination, investigation, charging and prosecution at the confirmation, pre-trial and trial stages; witness issues, including credibility assessments and interference with witnesses; and the impact of actors external to the OTP.The report singles out Ocampo’s top-heavy and cumbersome decision-making and staffing practices as the key reasons why the prosecution failed. “Prosecutor 1’s (Ocampo) leadership could best be categorised as autocratic, not open to contrary assessments or viewpoints, too often marginalising those who disagreed with him or reacting angrily and threateningly.”It adds: “This leadership style discouraged candid, contrary assessments and viewpoints to the detriment of the cases. Prosecutor 1 instilled an attitude that the Office must go forward with the Kenya cases, must save the cases, regardless of the evidentiary insufficiencies, and that any other view was disloyal.”But Ocampo’s critique of the report is equally scornful.

He accuses the experts of making personalised attacks against him and lays the blame for his failure at the feet of the six Kenyans, saying they were “powerful, refined, well-funded and prepared, and who had a well-oiled engine for propaganda and to interfere with witnesses”.“The report has two main problems: It does not suggest how the witness interference that affected the trial phase could have been controlled.

It also diverts attention thus producing unfounded personal attacks, including to the current prosecutor, and a baseless challenge of the quality of the OTP staff,” he says.Reached for comment, former Attorney General Githu Muigai told The Standard that the report corroborated his sentiments that the case was handled unprofessionally.“This confirms what we had always said all along. The case was incompetently handled by a team animated by external pressures.

The excuse that Kenya was not cooperating with the court is confirmed by the report to be an afterthought. One hopes that the court’s intermediaries have learnt a lesson,” said Prof Githu.The AG represented the country as a friend of the court during hearings at The Hague.The ICC opted to close the cases against the Ocampo Six without acquitting them. All eyes will now be on Bensouda to see whether she chooses to reopen the case against Ruto, or the matter remains held in abeyance.Doubts, however, linger on how far the prosecutor can dig in her pursuit of justice

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