NAIROBI, KENYA: President Uhuru Kenyatta could be in The Hague’s courtroom on October 7 or get leeway to follow the proceedings via video link in Nairobi but one thing is certain; the case has lost steam and even Prosecutor Fatou Bensouda has conceded.
The International Criminal Court (ICC) serious crimes trial specifically against the President has suffered endless strings of jolts, particularly as regards witnesses, but five months after he crossed the one-year-mark into his rule, the case appears to be in serious jeopardy and could be headed for closure over lack of evidence.
According to the ICC prosecution, lack of a clear demarcation line between Uhuru the suspect and Uhuru the head of a sovereign government, has done the greatest harm to the trial which has now been postponed five times.
The Office of the Prosecution (OTP) blames all its woes either on frustrations by the Uhuru administration or to witnesses who have shied away or feared testifying against their President, a man who was a Cabinet member when they agreed to testify against him.
The trial which was initially set to start on April 11, last year was adjourned to July 9, then again to November 12, same year, then to March this year and finally to October. It has now been adjourned indefinitely and the court has set a status conference on October 7 to hear the issues.
“Given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the status conference on October 8, 2014,” ICC judges ruled last Friday, but according to ICC’s spokesperson Maria Kamara yesterday, his defence team has the leeway to apply for this option.
In February this year, the prosecution conceded they had no more evidence to put Uhuru on trial.
The admission has left many legal analysts questioning why the Prosecution was still flogging a dead horse. “This is the fate that the case was to suffer, anyway,” argues Nairobi lawyer Kibe Mungai.
But the International Commission of Jurists (ICJ-Kenya) Executive Director George Kegoro says the Kenya government and the media have ‘ganged’ up to portray the case against Kenyatta as witch-hunt. “The Government has gone ahead to frustrate the prosecution by failing to show cooperation as required of it,” he argued.
The case against Uhuru was confirmed by the Pre-Trial Chamber on January 23, 2012. As early as April the same year, the OTP sent a request to President Kibaki’s administration for Uhuru’s financial and other records of his assets.
In June 2013, the Government submitted that the records had to be collated from various sources within and outside the Government. Some information was held by private individuals and their consent was required before the Government could access it.
Meanwhile, the prosecution faced a different challenge with witnesses pulling out of the case. Some withdrew citing their own security, others just decided not to testify and others admitted having given false evidence that was used to confirm the charges.
Key among them was witness Number 4 whose evidence was central to the confirmation of the charges. The witness had given a detailed account of his alleged meetings with Uhuru and members of Mungiki sect at Yaya Center and State House on November 26, 2007 and another at Nairobi Club on January 3, 2008.
Two other witnesses number 11 and 12 had also claimed to have attended meetings at State House on December 30, 2007.
The Pre-Trial Chamber relied exclusively on the evidence of these witnesses to confirm the charges.
In May 2012, witness Number 4 told the OTP that he had lied about the meetings. The prosecution withdrew him from the list of witnesses in January last year. The prosecution also withdrew witnesses’ Number 11 and 12 after they also admitted having given false evidence against the accused.
Further, they withdrew another witness Number 66, after she informed them that she did not wish to have her identity disclosed to the defence due to her own safety concerns.
The prosecution says the accounts of the witnesses lay at the heart of their evidence, providing a critical link between the accused and the crimes in Nakuru and Naivasha.
They claim many witnesses have been bribed or intimidated to withdraw their evidence or refuse to testify. “This was the case with several witnesses who agreed to be part of the case at confirmation, where their identities were withheld from the accused, but who have since refused to testify at trial because this would have entitled the accused to know their identities,” Bensouda told the court.
With much evidence of the witnesses having disappeared, the prosecution is still banking on Uhuru’s bank accounts, records of any land and companies he owns and records of his telephone lines covering the 2007 and 2008 post-election period. It says this is the last piece of evidence to determine if the case can proceed or should be withdrawn.
The prosecution wants access to communication involving officials of the Office of the President, National Police Service, Kenya Defence Forces, and the National Intelligence Service dating from the period November 2007 to March 2008.
The Government has maintained that it can’t access some of the records without specific details from the prosecution. Attorney General Githu Muigai argues the Government cannot assist the prosecution with investigations.
Kegoro accuses the media of being more than an active player in portraying this case as weak, arguing it has failed to ask pertinent questions, including if it is true as alleged, that witnesses in this case have mysteriously died. He however faults the prosecution over the manner it conducted investigations.
Lawyer Mungai says the case is dying a natural death. “It is not that the case is losing steam. It was just not there from the first day. The decision to charge President Uhuru was only political,” he adds.