An external expert review by the International Criminal Court has blamed former prosecutor Luis Moreno-Ocampo for the collapse of the Kenyan cases.
The report blames the failure of the cases on the autocratic leadership style of Ocampo, top-heavy, cumbersome decision-making and staffing practices.
“In general, the prosecutorial process was hampered by deadlines set by Prosecutor 1 (Ocampo) based on considerations other than sound prosecutorial practice,” the report says.
The report also attributes the collapse of the cases to external factors including lack of sufficient cooperation and witness tampering and interference.
On Tuesday, ICC Prosecutor Fatou Bensouda made the outcome of the review public noting that critical lessons were drawn from the Kenyan cases.
“I am encouraged by the fact that the Office had already addressed most of the recommended changes in response to our experience of the Kenya situation even prior to the receipt of the independent external expert report,” Bensouda said.
In a rejoinder annexed to Bensouda’s statement, Ocampo dismisses the issues raised about his leadership.
One of the issues that he responds to is the conclusion by the experts that his “autocratic leadership style” led to the failures in the Kenyan cases.
“The experts arrived at such conclusion using an autocratic method: they did not interview me or allowed me to provide explanations to their concerns,” Ocampo says.
Ocampo initiated the Kenyan cases after the 2008 post-election violence but left office before they got to trial leaving the work to Bensouda.
On December 5, 2014, Bensouda filed a notice to have the charges against President Uhuru Kenyatta withdrawn due to insufficient evidence.
The case against Uhuru is considered closed unless and until the Prosecutor submits new evidence.
On April 2016, Trial Chamber V(A) decided, by the majority that the case against William Ruto and Joshua Sang is to be terminated. The parties have not appealed this decision.
Ocampo further dismisses the report for failing to suggest how the witness interference that affected the trial phase could have been controlled.
He also says that the report’s other problem is that it diverts “the attention producing unfounded personal attacks, including to the current Prosecutor, and a baseless challenge of the Office of the Prosecutor entire staff ‘quality.”
In her statement, Bensouda noted that the completion of the initiative has allowed her office to consider and implement, where still necessary, any appropriate changes in both operational and management practices, as recommended by the external experts.
“While my Office spared no effort to advance and salvage the cases in the Kenya situation, and had to take difficult but professionally responsible decisions in the process, the experience in the situation provided learning opportunities that have assisted, and continue to assist, the Office,” Bensouda said.
Her statement was accompanied by an Executive Summary of the findings of the three independent external experts.
The experts said that though there were many factors that affected the Kenyan cases, three were most significant.
They listed them as; (1) the autocratic leadership style of Ocampo, (2) top-heavy, cumbersome decision-making and (3) staffing practices.
“Prosecutor 1 (Ocampo) 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,” the report notes.
The report also says that during Ocampo’s tenure of Prosecutor 1, decision making was concentrated at the Prosecutor and Executive Committee (ExCom) level.
The experts added that this lay primarily with Prosecutor 1, even for day-to-day decisions relating to the conduct of investigations and prosecution.
“These actors, primarily Prosecutor 1, micro-managed the process to the detriment of the cases. Decision-making was too complex, with too many actors involved, leading to delays in decision-making or failure to make decisions at all,” the report says.
In his response, Ocampo said that the Executive Committee’s intervention on reviewing the evidence and the legal arguments of an Office with a few cases is not “micro- managing” as labelled by the report.
“On the contrary is the proper implementation of the mandate defined by the Regulations of the Office,” Ocampo said.