On the 3rd of
December 2014, the Judges of Trial Chamber V (B) of the International
Criminal Court (ICC) found that the Government of Kenya had failed to
adequately cooperate with my investigations in the case against Mr.
Uhuru Muigai Kenyatta. The Chamber stated, "[it] finds
that, cumulatively, the approach of the Kenyan Government […] falls
short of the standard of good faith cooperation" and "that this failure
has reached the threshold of non-compliance" required under the Rome
In its ruling, the Chamber,
therefore, found, "[…] that the Kenyan Government's non-compliance has
not only compromised the Prosecution's ability to thoroughly investigate
the charges, but has ultimately impinged upon the Chamber's ability to
fulfill its mandate under Article 64, and in particular, its
truth-seeking function in accordance with Article 69 (3) of the
Statute." This is a significant finding.
Judges have thus determined the status of the Kenyan Government's
cooperation in the case against Mr. Kenyatta. Contrary to the Government
of Kenya's public pronouncements that it has fully complied with its
legal obligations in this case, the ruling has confirmed that in fact it
has breached its treaty obligations under the Rome Statute by failing
to cooperate with my investigation.
have persistently sought to secure the cooperation that my Office
required from the Government of Kenya in this case in order to execute
my mandate. Crucial documentary evidence regarding the 2007-2008
post-election violence, including concerning the conduct of the accused,
can only be found in Kenya and is only accessible to the Prosecution
through the assistance of the Government of Kenya. This crucial
assistance was ultimately not provided, as confirmed by the recent
decision of the Trial Chamber.
addition to this failure on the part of the Government of Kenya, my
Office has faced other severe challenges, which have hampered my ability
to thoroughly investigate the 2007-2008 post-election violence, and
ultimately, frustrated the investigations in this case. These include:
- A steady and relentless stream of false media reports about the Kenya cases.
- An unprecedented campaign on social media to expose the identity of protected witnesses in the Kenya cases.
- Concerted and wide-ranging efforts to harass, intimidate and threaten individuals who would wish to be witnesses.
be sure, the Government of Kenya's failure to provide my Office
important records has had a severe adverse impact on this case. It has
deprived the victims of their right to know the full account of what
transpired in 2007-2008. It has further undermined my ability to carry
out a full investigation. And finally, it has prevented the Judges from
carrying out their critical functions of assessing the evidence and
determining the truth.
hurdles we have encountered in attempting to secure the cooperation
required for this investigation have in large part, collectively and
cumulatively, delayed and frustrated the course of justice for the
victims in this case.
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