Uhuru’s ICC case hangs on three factors
The ICC case against President Uhuru Kenyatta hinges on only three factors, which chief prosecutor Fatou Bensouda is hoping will help revive the crimes against humanity charges. Bensouda is counting on the prospects of getting new evidence to support her case.
She is also pinning her hopes on a judicial non-compliance finding against the Kenyan government and the willingness of Witness 11 to testify.
Only the success of one or combination of these factors can rescue the case from inevitably falling apart, now or later in the course of the year.
While requesting the judges to adjourn Uhuru’s case by three months, Bensouda said the withdrawal of Witness 11 and the decision to drop Witness 12 had gravely weakened her case.
“P-0011’s withdrawal has also undermined the prosecution’s case, removing evidence regarding the intermediaries who allegedly oversaw the attacks on the accused’s behalf, as well as evidence regarding the logistical support provided to the attackers,” she said.
Bensouda said although Witness 11 had withdrawn, he had shown willingness to come back when he last spoke with her staff on December 17. “He volunteered that he may be willing to reconsider his position, but did not make a firm commitment,” she said.
The prosecutor hopes by the end of the proposed three-month adjournment, she will be able to “determine conclusively” whether Witness 11 is willing to testify.
Bensouda has applied to the court to make a finding that the Kenyan government has failed to cooperate with her to give her Uhuru’s financial records.
The prosecutor believes the adjournment will offer the court an opportunity to adjudicate on the matter. “If successful, the finding may cause the government of Kenya to produce the information the prosecution has requested regarding the accused’s finances,” Bensouda said.
She believes that if the financial information sought corroborates the existing witness testimony about Uhuru funding the violence, then her case will bounce back.
Finally, Bensouda hopes that by the end of this month, she will have conducted “additional investigative steps, including those not previously open” to her. The prosecutor has confidentially informed the judges about her investigative steps.
Nothing can however cover for the loss of Witness 12, who has since been dropped after admitting lying about crucial events in the case against Uhuru.
The witness had been interviewed five times by the prosecution about the alleged State House meetings held to plan the violence.
During his final interview on December 4 last year, he admitted that he never attended the alleged December 30, 2007 planning meeting.
“P-0012’s account lay at the heart of the prosecution’s evidence, providing a critical link between the accused and the crimes in Nakuru and Naivasha,” Bensouda said.
Article 66(3) of the Rome Statute says that conviction can only be obtained if the guilt of the accused person has been proven beyond reasonable doubt.
ICC judges are expected to adjudicate on Bensouda’s adjournment request once they come back from recess. Whether the judges accept Bensouda’s request or not could be the fourth factor underpinning the case.