In September 2011 Pre-Trial Chamber 2 of the International Criminal Court confirmed that there was sufficient evidence to proceed with the case against Kenyan XCitizens Uhuru Kenyatta and Francis Muthaura. The Judges based their decision on the evidence of 3 main witnesses; OTP-4, OTP-11 and OTP-12.
However, just before the Court confirmed this case against the two Kenyans witness number 4 admitted to the ICC Prosecutor that s/he had lied in their testimony; a development that might have affected the Court’s decision had it been brought to the attention of the Judges before the decision as required in the pursuit of justice. However the Prosecutor did not bring this information to the Court’s attention as he was required to. He let the Judges continue believing the witnesses earlier dishonest testimony until the cases were confirmed.
When the lie was finally discovered by the Muthaura and Uhuru defence teams and brought to the Court’s attention after confirmation of the cases, the Prosecutor ‘apologized’ and argued that ‘it was not immediately obvious (to them) that the with-held statement was inconsistent with the witnesses other statements’. They then went ahead and dropped the charges against Muthaura but argued that even if the pre-trial chamber were to entirely discard the evidence of witness 4, the Prosecutor still had enough evidence to present a ‘solid case’ against Uhuru based on evidence from witnesses OTP-11 and OTP-12. She then insisted that the case proceed to full trial. The Court obliged her.
Witness OTP-11 has since withdrawn from the case while witness OTP-12 has since been found to have been unreliable (by the Prosecutor herself), and dropped. However rather than accept that she now has no case against Uhuru in light of these developments the ICC Chief Prosecutor stubbornly insists that she just needs a little more time, AND cooperation from the Kenyan government. She then slyly twists the narrative to suggest that actually her problem is not so much the lack of evidence, but the lack of cooperation from the Kenyan state. She then goes ahead and requests the Court to adjourn the case indefinitely until the Kenyan government cooperates to her satisfaction, ‘but please do continue holding Uhuru, as an accused’
The Chief prosecutor pursues this line of argument even outside Court. As recently as last week (October 27, 2014) at a forum organised to brief the US Senate on the ICC by the American Bar Association International Criminal Court Project in conjunction with the Washington Working Group on the ICC, the ICC Chief prosecutor spoke of ‘the lack of cooperation by the Kenyan government, on-going witness intimidation and evidence tampering, and the substantial amount of crime-based evidence already before the Court’.
However, she did not tell them that she herself has admitted that this ‘substantial’ evidence she has is insufficient to sustain her case. She also did not tell the US Senators in attendance that she has never been able to provide evidence to support her claims of interference when challenged to do so in Court. She also did not tell the Senators that her claims of lack of cooperation have been challenged by the Kenyan state representative, in Court.
The ICC Chief Prosecutor will also not admit that her office, of its own volition, chose not to work with the Kenyan state right from the beginning of the Kenyan cases; preferring instead to rely mainly on non-state actors and criminal organizations to build their case and source evidence and witnesses. She will also not admit that her office failed to verify the information they received from their non-state sources, before they initiated cases against Kenyan citizens.
The Chief Prosecutor will not admit that the fundamental reason that her evidence and witnesses are not holding up to cross examination is because they did a shoddy unprofessional job of investigating the cases. She prefers to tell the world that her evidence and witnesses are failing because of ‘interference’, and subtly point a finger at the Kenyan government, and the defense. The Court continues to humor her.
‘Fool me once, shame on you. Fool me twice, shame on me’.
This is no longer about President Uhuru Kenyatta. This has now become about stopping a rogue process from harassing a Kenyan citizen. Uhuru’s fellow citizens must now step up and tell the ICC Chief Prosecutor; ‘Enough is Enough! You clearly do not have enough against our brother so leave him alone’ It is also time for Kenyan Citizens to make it clear to the ICC Prosecutor, the Court and anyone else with an interest in the ICC Kenyan cases that we will not allow them to lay the blame for the failures of the institution on Kenya, or her government.
Finally it is time for the Kenyan people to demand a public apology from the ICC for using us as guinea pigs in what has become a terrible experiment.
By Ngunjiri Wambugu
Ngunjiri is a Director of Change Associates, a Political Communications Consultancy.
-The Star
