Bensouda changes tune over evidence


ICC prosecutor Fatou Bensouda made a surprise about-turn yesterday, insisting that she has considerable evidence linking President Uhuru Kenyatta to the 2007/2008 post-election violence.

Bensouda made the assertion during a dramatic face-off with Uhuru’s defence, who pleaded with the judges that they terminate the case, terming her remarks “a scandalous misrepresentation of the evidence”.

During the status conference at The Hague, Bensouda maintained there is evidence Uhuru procured weapons and bankrolled the Mungiki, who went on a killing spree.

This, she maintained, is demonstrated by the statements of prosecution witnesses who were insiders in the outlawed sect and who have directly linked the President to the violence.

“Witness 152 says he was present at a hotel meeting which was attended by Mr Kenyatta,” senior prosecution lawyer Benjamin Gumpert submitted. “During the meeting, he says, Mr Kenyatta announced that there has been an agreement with the Mungiki that they will fight on the PNU-Kikuyu side during the post-election violence”.

The lawyer went on: “Witness 428 received money and weapons from a former member of Parliament on a daily basis during the violence. That person told witness 428 that he was acting on behalf of Mr Kenyatta”.

He said that two other witnesses, 429 and 430, went to Uhuru’s house to raise funds for the violence.

Gumpert said at the height of the violence, Uhuru allegedly called their former witness six times.

“What was the government minister and future President talking to the Mungiki member about?,” Gumpert asked during the stormy session.

But Uhuru’s lawyer Stephen Kay, QC, dismissed claims that there is evidence linking his client to the bloodshed and pleaded with the judges for a not-guilty verdict.

Kay asked the prosecution why they were seeking an adjournment instead of going for trial if indeed they had incriminating evidence.

“What you have heard from the prosecution is a scandalous misrepresentation of the evidence they have provided to this court,” the British lawyer submitted. “The whole circumstances of evidence-gathering in this case utterly failed to meet acceptable standards.”

Kay maintained that the prosecution case was grounded on the false testimony of witnesses 4, 11 and 12, whom the defence had busted as liars.

In her final submission to the Court, Bensouda gave the judges two options.

“There is no middle way.

Either, Madam President, you refuse any further adjournments and therefore require the prosecution to effectively withdraw, or you commit to an indefinite adjournment conditioned on the eventual compliance of the Government of Kenya,” she maintained. “Any other course will simply be ineffective.”

The President did not address the judges as earlier expected, even as the prosecution and Victims’ lawyer Fergal Gaynor indirectly linked him to the obstruction of access to evidence.

Gaynor maintained that Kenyatta is the most powerful person in Kenya and in fact the only one who can fire Attorney General Githu Muigai, who has been “purporting” to cooperate with the prosecution.

“The accused controls the Government of Kenya under the Kenyan constitution. An accused cannot complain of a delay which he is himself responsible for,” he stated.

But Kay rubbished the obstruction allegations, insisting that their was no evidence linking his client to the claims.

“My client is the head of state, but also an accused with rights. My submission is that the head of state issue does not have any substance,” he said.

The ruling of the three judges – Kuniko Ozaki (Presiding), Robert Fremr and Geoffrey Henderson – is expected any time now.


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