Deputy President William Ruto’s ICC lead defence lawyer Karim Khan could be elected the court’s next prosecutor in a fresh twist that has drawn the wrath of African civil society.
The race to succeed outgoing Prosecutor Fatou Bensouda has come down to two frontrunners – Khan and Irish lawyer Fergal Gaynor, who represented the PEV victims – in the collapsed cases against President Uhuru Kenyatta and Ruto.
Uhuru and Ruto were not acquitted, the charges were withdrawn because witnesses recanted, disappeared or were murdered.
Gaynor had strongly opposed the withdrawal of charges against Uhuru and Ruto and accused the two of using state power to obstruct justice.
Kenya had rejected the initial Bensouda replacement shortlist – which did not include Khan – claiming the selection process was biased and doctored to favour a certain applicant.
According to Journalists for Justice, a not-for-profit foundation registered in The Hague, Khan remains the favourite to land the job, although the 123 member states are divided.
“The problem is that against every candidate there are one or more possible objections. He [Khan] may be considered too close to those in power in one of the ‘situation countries’ where the ICC investigates and prosecutes atrocity crimes,” Journalists for Justice reported.
Khan, a British lawyer with roots in Pakistan, had also represented the former head of Civil Service Francis Muthaura before the ICC.
Muthaura’s case was terminated because star prosecution witnesses withdrew their testimony.
However, several civil society groups have written to ICC member states saying Khan is not suitable for the high-profile job, citing his conduct in the Kenyan cases.
Although civil society organisations do not cast votes in the election of the prosecutor, their lobbying and advocacy can shape perceptions about candidates and influence how states vote.
The civil society organisations, mostly drawn from Kenya, highlight Khan’s actions – or inaction – after the death Meshack Yebei who was a key defence witness.
Yebei went missing from his home in Turbo, Uasin Gishu, on December 14, 2014, before his mutilated body was found in a game park, 40km away at Tsavo National Park.
“When the mutilated and tortured body of Mr Yebei was indeed found in March 2015, Mr Khan remained silent on the matter and appeared to have dropped his public demands for an investigation. Mr Yebei’s family has asked why Mr Khan did not raise the alarm when Mr Yebei first disappeared,” the rights groups asked in a statement.
“To date, Khan has not spoken publicly about the need for the Kenyan government to carry out an investigation into the death of Yebei, his witness, despite the former ICC Registrar’s expression of willingness to assist the Kenyan authorities with its investigations regarding Yebei’s death.”
Yebei’s murder triggered outrage and then Director of Public Prosecutions Keriako Tobiko ordered an investigation but no suspects have ever been arrested or charged.
In their letter, the civil society players say the Ruto case was declared a mistrial and could be resuscitated should relevant evidence emerge. Bensouda has said the same about reviving the case.
Furthermore, they argue, the ongoing case against lawyer Paul Gicheru for witness tampering in the Ruto case could compel Khan to recuse himself from the case if elected prosecutions boss.
“This case is extremely important for the ICC in terms of setting a precedent for those who attempt to bribe or interfere with witnesses. Mr Khan, if elected as ICC Prosecutor, would have to recuse himself from this important case as well as any future trial proceedings in the Ruto & [Joshua] Sang case,” they stated
The organisations opposed to Khan’s candidacy include the Africa Centre for Open Governance (Kenya), the Uganda-based African Defenders (Pan-African Human Rights Defenders Network), Tanzania’s Centre for Strategic Litigation, the Kenya Human Rights Commission (KHRC). The Kenyan Section of the International Commission of Jurists (ICJ-Kenya), the Kenya National Victims and Survivors’ Networ,; the Arusha-based Pan African Lawyers Union (PALU) and Trust Africa, in Dakar, Senegal.
In response to the accusations, Khan said he took all the necessary measures to ensure Yebei was safe, including referring him to the ICC-Victim and Witness Unit (ICC-VWU)—the organ within the ICC registry tasked with providing protective measures, security, counselling and assistance to witnesses.
“I am not able to disclose the source of alleged threats against Mr Yebei that grounded my request for his protection, save to say I did everything ethically within my power to ensure Mr Yebei and his family were safe.
“The responsibility to physically protect, relocate or support witnesses does not fall upon an individual counsel under the Rome Statute regime. Rather, it falls on the independent ICC-VWU once a witness is referred or issues highlighted to them by counsel or other persons,” Khan said.
However, six mostly francophone civil society organisations endorsed Khan’s candidacy in a January 8 open letter.
“With a proven track record of experience and success, [the person] who has demonstrated the capacity to implement the recommendations of the IER [Independent Expert Review] and effectively lead the Office of the Prosecutor during these next critical years is, in our view, Karim Khan,” they said.
Kenya had rejected the initial shortlist, which did not include Khan.
“The Republic of Kenya anticipated that the committee would present a shortlist of qualified candidates with an equal chance of being elected as the next prosecutor. The current shortlist does not meet this expectation and appears skewed in favour of a particular candidate,” Kenya’s ambassador to the Netherlands, Lawrence Lenayapa, had protested.
It is believed Gaynor could seek to resuscitate the Kenyan cases that collapsed, largely due to what the prosecution said was massive witness tampering and lack of cooperation from the state.
The third candidate is Spanish prosecutor Carlos Castresana who is less well known in ICC circles.
Gambian-born Bensouda will retire in June after the completion of her nine-year term. She succeeded the first prosecutor, Luis Moreno Ocampo, whom she had deputised for five years.
(Edited by V. Graham)