Report: How Ocampo bungled Kenyan ICC cases

Prosecutors Luis Moreno-Ocampo and Fatou Bensouda at a past court session at the ICC in Hague, Netherlands. [File, Standard]

An external expert review by the International Criminal Court has blamed an "autocratic and not open to contrary assessments" ex-prosecutor Luis Moreno-Ocampo for the collapse of the Kenya case at the court. 

Released on Tuesday by Ocampo's successor Fatou Bensouda, the report points an accusing finger at Ocampo's leadership of the Office of the Prosecutor (OTP).

It says Ocampo was often either reacting angrily and threateningly to those who disagreed with him or marginalising them. 

"This leadership style discouraged candid, contrary assessments and viewpoints to the detriment of the cases," the report reads, "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 experts accused Ocampo of ignoring the recommendations of those in the Investigation Division (ID) and Prosecution Division (PD), saying he could have been inappropriately influenced by actors outside his office.

"He seemed to rely too heavily on the Jurisdiction, Complementarity and Cooperation Division (JCCD) recommendations," the report which interviewed some 30 current and ex-OTP staff reads.

Further, Ocampo is accused of delaying in seeking the assistance of the Trial Chamber to compel the cooperation of the Kenyan Government. 

The experts note this resulted in contradicting approaches advocated by JCCD and PD.

"Ocampo dismissed, without explanation, concerns voiced to him about whether the ICC could take on targets that were powerful, sophisticated, well-funded and organised, given the problems within the Victims and Witnesses Unit (VWU) at the time," the report says.

Hitherto, Ocampo is also accused of bungling the case by setting deadlines based on considerations other than sound prosecutorial practice.

"These deadlines prevented completion of the legal analysis at the preliminary examination stage, and resulted in a premature application for authorization to open an investigation into the Kenya situation, charging decisions, applications for summonses to appear, and Confirmation of Charges (CoC) hearings."

Ocampo, however, denies any wrongdoing. His response was included in a rejoinder annexed to the report.

He says the six accused were "powerful, sophisticated, well-funded and organized" and "willing to engage in concerted propaganda campaigns and pervasive witness interference."

On his leadership style, Ocampo said: "The experts arrived at such conclusion using an autocratic method: they did not interview me or allowed me to provide explanations to their concerns."

He also denied that domestic and international non-governmental organisation (NGOs) and other international actors exercised too much influence over decisions.

Bensouda said she was releasing the report not to blame or criticise anyone but rather to learn from the process and improve their operations. 

The report was submitted to her in February 2018 and she notes the decision to release it now was influenced by various factors including the Review Process the Netherlands-based court was now embarking upon with States Parties.

She believes that her office will now properly manage such factors as lack of sufficient cooperation, witness tampering and interference which the experts believe led to the collapse of the case. 

"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 notes. 

Ocampo and Bensouda failed to nail six people they believed were responsible for inciting Kenya's post-election violence of 2007-08.

At least 1300 people were killed and hundreds of thousands displaced in the violence.

The six included President Uhuru Kenyatta, his deputy William Ruto, journalist Joshua Arap Sang, ex-minister Henry Kosgey, Francis Muthaura and former police chief Mohammed Hussein Ali.

Ocampo, at the time of initiating the case in 2010, said they would face the law and serve as a lesson to other would-be warlords.

Fast forward to four years later, the high-profile prosecution collapsed. While President Uhuru Kenyatta's case was withdrawn by OTP on December 4, 2014, due to insufficient evidence, Ruto's was terminated by the Trial Chamber on April 2016.