ICC’s Bensouda threatened with lawsuit over Kenyatta case


International Criminal Court (ICC) Prosecutor Fatou Bensouda and her predecessor Luis Moreno Ocampo have been warned of a possible prosecution in the European Court of Justice, if all cases against Kenya in the Post-Election Violence (PEV) 2007/8 case are not dropped. Consequently, the ICC Presidency, headed by Judge Sang Hyun Song, has also been petitioned for what has been described as “looking on as the two prosecutors misused the court by using fake evidence, fake witnesses, coaching of investigators and witnesses by intermediaries of the Office of the Prosecutor (OTP) in the PEV 2007/8 case against Kenya without reprimand.”

The warning and petition have been made by the Director, African World Media Ltd, Dr David Matsanga, in his closing petition under Article 38 of The Rome Statute to the ICC Presidency regarding its administration of the court, this week. Dr Matsanga argued that administration of the court failed and ignored all complaints raised by court participants, about the fake evidence and other malpractices procured by the OTP, breaching Article 38 of the statute. Article 38 spells out the duties and responsibilities of the Presidency of the ICC in its primary role to ensure proper administration of the court which also includes, disqualification of the prosecutor and his/her deputy on the basis of their prior involvement with a case.

He called upon Judge Sang Hyun Song to institute an independent panel to investigate how the OTP was allowed to use recanted evidence against Kenyan President Uhuru Kenyatta. “It calls for a serious inquiry on how OTP was allowed to fake evidence and use recanted evidence of OTP 4 in Mr Uhuru Kenyatta’s case,” Matsanga cried. He cited the recent 8th October status conference of President Kenyatta in which OTP once again laid its flawed evidence despite glaring irregularities. Matsanga, as amicus curiae, further blamed the ICC Presidency for continuously ignoring his over 10 appeal applications, pointing out the same which have now affected the case at tertiary stages.

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He reiterated that under normal circumstances, the PEV 2007/8 cases against President Kenyatta, his deputy William Ruto and Arap Sanga, a Kenyan journalist, would be terminated. But instead, he argued, Bensouda is seeking an indefinite postponement of the case, yet the victims have met all obligations of the court by providing the much needed co-operation as per the complementary clause of the statute. “The OTP on 8th October 2014 clearly stated that the suspect, Mr Uhuru Muigai Kenyatta, has not in any way stopped or obstructed the OTP from obtaining the stones of evidence that have turned into pebbles,” Matsanga retorted.

Dr Matsanga disclosed that continuation of the cases against the Kenyan President and his deputy by pouring out fake evidence before the Kenyan public, will anger the nation whose leaders are already traumatized by the actions of the OTP, hence making the situation fragile for the country. In addition, he called the case clueless relating to it as being “a hard to wrap and conceal horned gift,” that will only bring more chaos to Kenya, satisfying agencies that have wanted to police Africa through the back door of neo-colonialism.

He complained of the disproportionate means the OTP has employed on Kenyan cases, which, he claims, show the personification of International Law, justice and human rights revelling in the execution of Africans like in the case of Libya. He recommended that it would be prudent for the ICC Presidency to constitute an organ of Assembly of African states to create an independent panel to investigate the irregularities in the PEV 2007/8. President Uhuru Kenyatta recently made history by becoming the first serving head of state to appear as a defendant before the ICC in The Hague. He was accompanied by his wife and more than 100 Kenyan Members of Parliament, governors and senators.


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