Today’s decision to drop charges against Kenya’s Deputy President William Ruto and radio presenter Joshua Arap Sang must not derail efforts to ensure justice for victims of the 2007/8 post-election violence, said Amnesty International. The two had faced charges of crimes against humanity.

In its decision, a Trial Chamber of the International Criminal Court’s (ICC) declared the charges vacated. However, it held that the charges were dropped “without prejudice to the Prosecutor’s right to re-prosecute the case in the future.”

Amnesty International’s Deputy Regional Director for Africa, the Horn and the Great Lakes Michelle Kagari said:

“This decision could be seen as a major setback by thousands of victims who have waited so long for justice.

“However, this is not the end of the road for the victims.  In fact, victims should be able to seek justice for these crimes in the future as the accused have not been acquitted, and can be re-prosecuted for these charges either by the ICC or domestically.”

Amnesty calls for renewed efforts to ensure that those accused of crimes under international law during the post-election violence are brought to justice, including through fair trials in Kenya’s national courts. It also welcomes the recognition by Judge Oboe Esoji of the role that witness interference played in the case and calls for all responsible to be held accountable.

This is the first time the ICC has decided to vacate charges following the presentation of the Prosecution’s case, but it is not the first time cases have been dropped amid allegations of witness interference and non-cooperation by the state. Cases against four others charged with crimes against humanity in relation to the post-election violence in Kenya, including that of President Kenyatta, did not reach the trial stage.

The ICC should strengthen the quality and scope of its investigations, as well as victim and witness protection measures. International pressure should also be intensified against governments that obstruct or fail to cooperate with the ICC’s investigations. Individual states should also seek to apply universal jurisdiction to crimes against humanity cases in Kenya.

Background

The majority of the Trial Chamber held that the charges against the accused should be vacated and the accused should be discharged, without prejudice to the Prosecutor’s right to re-prosecute the case in the future.

Judge Oboe-Esoju declared a mistrial due to witness interference and political meddling, while Judge Fremr found that there was no case to answer for the two accused. The majority agreed that this did not constitute an acquittal but only a vacation of the charges, without prejudice to the Prosecutor's right re-prosecute the case at a later time. Judge Carbuccio appended a dissenting opinion on the basis that there was sufficient evidence to proceed.

This decision signals the collapse of another case seeking to hold perpetrators accountable for the post-election violence of 2007/2008, after the withdrawal of the charges against President Uhuru Kenyatta last year. All the cases that have so far come to court have collapsed.

William Ruto was charged with the crimes against humanity of murder, deportation, persecution and forcible transfer of populations as an indirect co-perpetrator. Joshua Arap Sang was accused of having contributed to the above crimes.

The charges against them stem from the violence that occurred following the December 2007 presidential elections in which incumbent Mwai Kibaki was declared winner amid complaints by his rival Raila Odinga that the vote had been stolen.

The riots and clashes that followed Mwai Kibaki’s hurried inauguration led to more than 1,200 deaths and displaced more than 350,000 people from their homes.

The Prosecutor of the ICC filed a request seeking authorization to commence an investigation into the situation in Kenya in November 2009, which was granted in March 2010. In December 2010, ICC Prosecutor Luis Moreno-Ocampo requested summonses for six persons - Uhuru Kenyatta, Francis Muthaura, Hussein Ali, Henry Kosgey, William Ruto and Joshua Arap Sang – to appear, which were granted in March 2011.

In January 2012, the ICC confirmed charges against Kenyatta, Ruto, Muthaura and Sang, and rejected the charges against Hussein Ali and Henry Kosgey.

In March 2013, the prosecutor dropped all charges against Francis Muthaura after a key witness recanted his testimony linking him to planning the violence.

The case against Uhuru Kenyatta ended in March 2015 after the prosecution withdrew the charges against him.