Has Bensouda got secret agenda?


The Africa Union resolution that sitting Heads of State and Government should not be tried while in office by the International Criminal Court (ICC) is expected to feature in President Uhuru Kenyatta’s address to Parliament this afternoon, as fears abound among his supporters that the Prosecution may be harbouring a hidden agenda against him.

As dilemma appeared to split the President’s supporters, over whether or not he should travel to the Hague, the question of what ICC chief prosecutor could harbour against him featured prominently.

Bensouda has persistently been seeking to have the Chamber Judges compel the Government of Kenya to furnish her with personal financial records of Uhuru which, she argues, could help her progress the case that is facing collapse for lack of witnesses.

Legal experts note that if Uhuru travels tomorrow night to The Hague, it would be the first time he meets Bensouda in her mandate at the ICC, since the last time he was there in 2011 during the tenure of her predecessor Luis Moreno-Ocampo. Bensouda who has been sparring with Attorney General Githu Muigai over her demands is expected to revisit her complaints against Kenya when  the Status Conference opens tomorrow.

Lawyers argue that the prosecutor could table strong arguments against Kenya, alleging she has been blocked from evidence against Uhuru. Attorney General Githu Muigai has presented a strong argument on his part that the prosecutor has been on a ‘fishing expedition’, without specifying what exactly she wants handed over to her office and making general demands.

The President and other co-accused undertook to cooperate and respect the court process and Bensouda could cite her frustrations as violation of that pledge. Ashford Muriuki, a lawyer who worked at International Criminal Tribunal for Rwanda says it would be an uphill task to have the bond terms reversed, even if Bensouda demands so. “They must have very serious evidence to show that Uhuru is using his position as a president to block collection of evidence.

It would also take time since they (prosecution) would have to make a formal application and wait for the president’s lawyers file their reply,” said Muriuki. Muriuki, however, said it would be surprising for the prosecutor to make such an application since the status conference was initiated by the judges and not her.

Of great concern to government officials, however, is that the judges have nearly always ruled in favour of the prosecution, against all applications by the defence, including the most recent in which he had sought to follow the Status Conference through video link from Nairobi.

This afternoon as Uhuru addresses the Senate and the National Assembly, observers say he is likely to note that last year an Africa Union summit in Addis Ababa, Ethiopia, passed a resolution that no sitting Head of State should be tried at ICC while in office. Though the resolution is not binding on ICC, Africa has the highest number of members at the global criminal court and therefore its voice cannot be dismissed.

Sources said the President is expected to tell MPs how he intends to balance AU position and his summons to appear before the court.  And as Uhuru played his cards close to chest, Deputy President William Ruto urged the church to pray for the President to overcome the challenges facing him as the leader of Kenya.

Speaking at St Joseph’s the Worker Catholic Church in Nakuru where  he attended a Sunday service yesterday, Ruto said the President as the leader of all Kenyans needs prayers  to make  decisions that are in the best interests of the country.

“The President needs prayers so that whatever decisions he makes are in tandem with the wishes and aspirations of all Kenyans,” said the DP.

Noting that the President and himself have relied on prayers to see them through difficult times, including their tribulations at the ICC, Ruto  said  their prayers had been answered by God and it was just a matter of time before they were both declared innocent of accusations facing them. He said: “There was a time when some people used to ask when we would go to The Hague, but  now they are asking whether it is my case or the President’s to be the first to end.”



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