ICC’s Prosecutorial Unpreparedness Is Detrimental To Justice

It was perhaps the most widely followed criminal case in the history of independent Kenya as deputy president Mr. William Ruto appeared before the International Criminal Court (ICC) alongside his co-accused Joshua Arap Sang’ to answer to charges of crimes against humanity. In her opening statement, ICC prosecutor Ms. Bensouda enumerated litany of charges she wants Mr. Ruto and Sang’ to be held accountable.

Yet, the shrewdness of Mr. Karim Khan-Ruto’s lawyer was unleashed unapologetically. In his opening argument, Mr. Khan had three words for the prosecutor-“Drop the case.”  Mr. Khan repudiated the prosecutor for advancing a “shoddy” case that was “crumbling before it started.” However, Ms. Bensouda remains optimistic she has sufficient evidence. She claims to be prepared to prove all accusations against Ruto and Sang’ beyond any reasonable doubt.

I want to draw your attention to Key phrases upon which these cases will either trample or triumph-“proof beyond any reasonable doubt” and “sufficient evidence.” For the starters, those phrases are fundamental to credible justice system. Guilty or innocent verdict is inextricably linked to sufficient evidence beyond any reasonable doubt or lack thereof. That’s why integrity of the office of the prosecutor which carries the burden of proof; must be absolutely beyond reproach.

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But if what happened during the opening arguments is any indicator, ICC prosecutor has a task of gigantic proportion. It was revealed that a witness who was supposed to testify hadn’t arrived. The cases will now be adjourned for a week. This isn’t the first adjournment. Postponement of cases has been effected in recent months to tighten loose ends. Moreover, Ms. Bensouda anticipates more witnesses to recant their testimonies. That’s an awkward state in which prosecutor finds herself.

If you stop right there and reason philosophically, one compelling conclusion is inevitable. The office of the prosecutor is either unprepared, uncoordinated or having enormous difficulties with witnesses. Coherent flow of cases against the accused seems to be experiencing speed bumps along the road. Although some cases can be successfully convicted based on evidence alone without witnesses, in this particular cases; witnesses are a critical component of anchoring credible trial.

My unsolicited advice to the office of the prosecutor is in two words-Be prepared.  Seeming prosecutorial unpreparedness is exposing the office of the prosecutor in negative light. It is also causing anguish to the victims of post-election violence who wants a closure to their emotional roller-coaster. Perceived prosecutorial unpreparedness is also standing in the way of justice and fair trial for the accused persons.

The office of the prosecutor should be primed to present credible witnesses and irrefutable evidence which may include phone records, video records, written documentation, hotel records and any other incriminating evidence that will proof these allegations beyond any reasonable doubt. Without “water tight” evidence, prosecutor will run into a wall of shame. Defense team will “eat” her alive. By and large, prosecutorial unpreparedness shouldn’t be allowed to stand in the way of fairness and justice for the President Uhuru Kenyatta, Deputy President William Ruto, journalist Joshua Arap Sang and the victims of post-election.

By Jacktone Ambuka; a Kenyan Residing at State College Pennsylvania USA. You can reach me by email [email protected],

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