In late 2007, Kenya held a closely contested presidential election whose outcome was challenged by the opposition. The disputed election results were followed by widespread violence that left 1,133 people dead, 663,921 displaced, hundreds of women and men sexually violated and property worth millions of shillings destroyed.1 When Kenya failed to establish a domestic tribunal to prosecute those suspected of serious atrocity crimes, as recommended by a Commission of Inquiry established by the international mediation process led by Kofi Annan, the International Criminal Court (ICC) intervened, opening cases against six high profile Kenyans in March 2010.
In February 2012, the Pre-Trial Chamber declined to confirm the charges against two of the suspects while confirming the charges against the remaining four, namely Uhuru Muigai Kenyatta, Francis Muthaura, William Samoei Ruto and Joshua Arap Sang. Subsequently, the Prosecutor withdrew charges against Mr Muthaura, citing the death or withdrawal of key witnesses and frustrations from the Government of Kenya in the collection of evidence.
The case against Uhuru Kenyatta, now President of Kenya, was withdrawn on 5th December 2014 by the Prosecutor citing the non-cooperation of the Government of Kenya in accordance with its Rome Statute obligations. The trial of William Ruto, now Deputy President of Kenya, and radio journalist Joshua Arap Sang, is currently before the ICC. Mr Ruto’s and Mr Sang’s trials began in September 2013.
Before being eventually withdrawn, the start of Mr Kenyatta’s trial was postponed a number of times for both procedural reasons and due to what the Prosecutor cited as lack of cooperation and deliberate frustration of investigations by the Kenya Government, now under the executive control of Mr Kenyatta.
This report chronicles the history of the Kenya Government’s failure to cooperate with the ICC leading to the collapse of the Kenyatta case, identifies gaps in the cooperation enforcement regime of the Rome statute and offers some suggestions as to how to ensure that the Rome Statute system is not slow-punctured by recalcitrant states to the detriment of victims of mass crimes.