President Uhuru Kenyatta’s ICC case collapsing
DETAILED analysis of Monday’s ICC ruling indicates that President Uhuru Kenyatta’s case is doomed to collapse by October.
The 47 page ruling by judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson left every impression that the case would collapse, even if the Kenya government cooperated and provided Uhuru’s financial records.
The judges acknowledged Bensouda’s assertion that getting the records might not revive the case following the withdrawal of witnesses 11 and 12.
“The chamber notes that the Prosecution has acknowledged that the possibility of obtaining sufficient evidence as a result of the Records Request is highly speculative, and the realistic prospect of otherwise securing conclusive evidence that could support the charges is minimal,” the judges said.
In February Bensouda requested an adjournment saying that she did not have enough evidence to sustain a trial.
She agreed that it would be logical to drop the case but wanted the court to make a finding of non-cooperation on Kenya’s. She argued that if she withdrew the case, she would be sending a message that states can thwart the ICC with impunity.
“It is not certain whether any information obtained as a result of the Records Request, as it is currently framed, would itself have significant evidentiary value or whether it would be a substitute for the evidence of Witnesses 11 and 12 to support the facts and circumstances described in the charges,” the judges added.
The judges nevertheless adjourned the trial to October to accommodate Bensouda’s request on Kenya’s non-cooperation.
They said they had “serious concerns regarding the timeliness and thoroughness of Prosecution investigations” in Uhuru’s case which would not normally allow for adjournment.
The ICC judges also indicted the Kenyan government for failing to cooperate with Bensouda’s requests for Uhuru’s records. They said Uhuru, as head of state, has a responsibility to ensure Kenya complies with her treaty obligations.
They rejected the argument that the prosecutor cannot request assistance without an ICC or a Kenyan court order.
“Any purported deficiency in domestic legal procedures (or interpretation thereof), cannot be raised as a shield to protect a State Party from its obligation to cooperate with the Court, or to undermine any application for non-compliance,” they said.
They said the Rome Statute envisages that national laws will facilitate cooperation requests.
The judges said Kenya’s delays over the requests had negatively affected the case.
“An adjournment is now being necessitated in order to facilitate compliance amply demonstrates the impact that the Kenyan Government’s actions have had on the proceedings in this case,” they said.
They noted that Uhuru holds a position of “particular influence” where he can contribute to a hostile atmosphere towards the prosecution, victims and witnesses.
“As such, at the very least, the chamber notes the possibility of a potential conflict of interests in this case,” they said.
Meanwhile, the trial against Deputy President William Ruto continued yesterday with the 14th prosecution witness being cross-examined by defence lawyers.
The witness told the court that he was not aware of any talk that the 2007 presidential election was about to be rigged.
The witness said he was not aware that Electoral Commission of Kenya chairman Samuel Kivuitu said results were being “cooked” and those doing the cooking “would be exciting people for nothing.”
He told lawyer Essa Faal that he was only interested in the final results. He said he relied rather than television to know what was happening at KICC.
Earlier the witness told presiding judge Chile Eboe-Osuji that Kikuyu youth who repulsed Kalenjin attackers in Rift Valley were as organized as the Kalenjins.
“There was coordination in our defence because once you throw stones they get finished. You need more. In Burnt Forest, women supplied the stones while the men threw them. In our case, there’s no scarcity of stones where I come from,” he said.
The hearings continue.