UHURU NOT YET FREE – BENSOUDA
ICC Prosecutor Fatou Bensouda has given the clearest indication that she is not done yet with President Uhuru Kenyatta, only days after jubilation swept the Jubilee strongholds following the withdrawal of the charges against the head of state.
In a surprise application late Tuesday, the Gambian-born prosecutor asked the judges to allow her to appeal the decision not to sanction Kenya for alleged failure to disclose Kenyatta’s financial and phone records.
This development came as victims’ lawyer Fergal Gaynor told the judges what transpired at State House, Nairobi, moments after the case was withdrawn, in a bid to persuade the Chamber that Kenya is determined to frustrate the Court. Virtually all Cabinet ministers and a host of politicians rushed to State House to congratulate Kenyatta.
Bensouda maintained that the trial judges had already made a finding that the government of Kenya failed to cooperate, insisting that the only remedy was to refer Kenya to the Assembly of States Parties for non-compliance.
“The Trial Chamber cannot resile from the fact that it has already made all necessary findings for the purposes of Article 87(7), namely: that the GoK failed to comply with a request to cooperate by the Court and that this prevented the Court from exercising its functions and powers under the Statute,” she stated.
Withdrawing the case on Friday, Bensouda indicated that she could press for new charges and emphasised that Kenyatta’s case has not been terminated.
“Mr Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she stated.
Bensouda termed as incorrect any argument that leave to appeal cannot be granted because the case against Uhuru has now been withdrawn.
She maintained that failure to refer the government, which she accused of “substandard cooperation”, to the ASP will deal a serious blow to future cooperation requests.
“The decision fails to recognise that the ASP referral is the only effective remedy available to the court in the face of persistent non-cooperation in the Kenya situation,” Bensouda submitted.
“In doing so, it unintentionally emboldens the GoK in its obstruction of the proceedings and deprives the Prosecution of any remedy,” she stated.
Attorney General Githu Muigai and Uhuru’s defence teams have yet to respond to this prosecution request.
However, Gaynor explained that statements made at State House shortly after Uhuru’s case was withdrawn clearly indicate that ending the case has “been the policy of Mr Kenyatta’s government”.
He quoted Foreign Secretary Amina Mohammed promising that the government will still fight to save Deputy President William Ruto from the ICC nightmare.
“The road is still long, we still have other cases in court, and, with the same determination, with the same passion, and with the same commitment, we will continue working with the other two cases,” he quoted the CS as saying.
“The Twitter feed of the Presidential Strategic Communications Unit (PCSU) on 7 December 2014 attributed to Mr Kenyatta this statement: ‘We will not stop or relent until we see the end of the remaining cases’.”
The Irish lawyer insisted that the government’s determination to hide the required financial and phone data records from the court is suggestive of its high probative value.
Bensouda will conclude her case against Deputy President William Ruto and journalist Joshua Sang by March next year.
Yesterday, Presiding Judge Chile Eboe-Osuji said that the prosecution will be required to close its case within the trial sessions that kick off on January 16, 2015.
“In light of the indication we have given to the prosecution that we want this case completed in those sessions already indicated for next year, we will be holding a status conference immediately after the completion of Mr Garcia’s and Mr Khan’s examination,” he explained.
Ruto’s lawyer Karim Khan is expected to complete his cross-examination of the 27th witness on Thursday, after which trial attorney Lucio Garcia will re-examine.
Eboe-Osuji indicated that the status conference will be held on Friday to discuss the 2015 sessions of the trial, which kicked off on September 10, 2013.
On Friday, the prosecution will inform the judges whether five witnesses who are among nine who have been compelled to testify will be doing so.
Four compelled witnesses have so far testified of the 27, but have been declared hostile for recanting their original statements.
Yesterday, Ruto’s lawyer said that the 27th witness was among a circle of conspirators who had been recruited by NGOs to testify against the Kenya suspects.
Khan cited activist Ken Wafula as being among individuals who were recruiting Kenyan witnesses to testify in the ICC cases.
The lawyer played a video of Wafula addressing a Cord Saba Saba rally in July, where he said he had information that Uhuru, Ruto and Sang would be jailed.