ICC judges give Bensouda one week to withdraw or proceed with Uhuru’s case


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icc-judge-kunokiInternational Criminal Court (ICC) judges have declined Prosecutor Fatou Bensouda’s request to further adjourn the case against President Uhuru Kenyatta.

The judges directed the prosecution to either file a withdrawal notice within one week or provide justification, on the basis of evidence, for proceeding to trial.

“The chamber DIRECTS the Prosecution to file a notice, within one week of this decision, indicating either (i) its withdrawal of the charges in this case; or (ii) that the evidentiary basis has improved to a degree which would justify proceeding to trial,” the court ruled.

The chamber noted that its decision to deny the request for adjournment, based on the “practical terms and in the circumstances of this case…is likely to have the consequence of ending the proceedings”.

While rejecting the prosecution’s request for a further adjournment of the case, the chamber relied on various factors, including the prosecution’s admission that the evidentiary basis remains insufficient to support a conviction.


At the same time, the judges noted the prosecution’s admission that it remains speculative whether the information sought in the cooperation request would, even if obtained, be sufficient to support the charges.

The judges also took into account the right of the accused to be tried without undue delay and the presumption of his innocence.

Under the circumstances, the chamber found that a further adjournment would be contrary to the interests of justice.

And while the judges considered the victims’ legitimate interests, which include seeing those responsible for the crimes committed being held accountable, they still noted that these interests must be balanced with other interests of justice.

They therefore found that it would not be in the interests of justice, or those of the victims, for the proceedings to be adjourned further in the present circumstances.

Based on the existing situation, the chamber considered a withdrawal of charges by the prosecution the appropriate course of action “unless the evidentiary base has now improved to a degree which would enable the trial to proceed”.


If the charges are withdrawn, the judges noted that this would not “prejudice the right of the Prosecution to bring new charges against the accused at a later date”.

This means that should the prosecution later obtain sufficient evidence to support new charges, then they would be at liberty to do so.

At the same time, the chamber declined to refer the matter to the Assembly of States Parties as requested by Ms Bensouda.

The judges said that they were not persuaded that a referral would facilitate a fair trial, or would be in the interests of justice.

President Kenyatta is charged at the ICC, as an indirect co-perpetrator, with five counts of crimes against humanity consisting of murder, deportation or forcible transfer, rape, persecution and other inhumane acts allegedly committed during the post-election violence in Kenya in 2007-2008.

The charges were confirmed on January 23, 2012, and the case was committed to trial before Trial Chamber V(B).


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