Pressure mounts on ICC to drop president Uhuru’s trial

By Daniel Wesangula

Sunday, July 27th 2014

President Uhuru Kenyatta follows the proceedings during the ICC pre-trial hearings at The Hague in September 2011. [PHOTO: FILE/STANDARD]

Hague: Pressure continues to mount on the International Criminal Court to terminate President Uhuru Kenyatta’s case for lack of concrete evidence tying him to the 2007/08 post-election violence.

Late last year, the ICC issued a press statement stating the case against the President “did not satisfy the high evidential standards required at trial” and that the prosecution needed time to complete efforts to obtain additional evidence and consider whether such evidence will enable the prosecution meet the evidential threshold required.

For nearly five years, ICC prosecutors Louis Moreno Ocampo and his successor Fatou Bensouda have taken Kenya and the world through the motions of the trial of a sitting president, his deputy and a former radio presenter.

Credible case

The admission last year of a lack of sufficient evidence put the ICC in a precarious situation and legal experts continue to poke holes in the prosecution’s ability to sustain a credible case against the President.

“Therein lies the puzzle. On one hand, the prosecution has admitted they have no case. They have insufficient evidence and unwilling or unavailable witnesses. Why then is the case still before court and allowed to continue endlessly?” argues lawyer Kennedy Ogeto.

Mr Ogeto, who is part of the President’s defence team, says the ICC should dismiss the case on the basis that they have, on their own admission, no case. “And there is no prospect of them gathering any evidence in the future that would contribute to their cause,” he said.

President Kenyatta, his deputy William Ruto and radio presenter Joshua Sang were charged in 2012 with crimes against humanity in relation to their alleged role in the post-election violence.

This is not the first time Kenyatta’s team is demanding that the ICC exonerates their client. In February, they made a similar argument, claiming the prosecution’s case had “collapsed”. But the court did not buy the argument, and gave the prosecution a few more months to gather evidence, in particular the all-important financial records of the President.

Lying star witness

The prosecution has since shifted focus to obtaining more information from the Kenyan Government. “All the prosecution is doing is to divert attention from its own failings. They never address the issue of their own lying star witnesses whom while in their protective custody chose to stand for the truth,” says lawyer Kabue Thumi.

“It is unfortunate that the court meant to uphold the highest standards of justice in the world has been reduced to going through the motions in a case in which they have no evidence.”

Mr Ogeto says with time, the true motivation for the ICC cases will be revealed to the public. ”The cases were simply meant to influence the outcome of the presidential polls but that failed. The people of Kenya voted in President Kenyatta and they have a right to have him attend to their urgent needs instead of splitting his time attending to fictitious matters,” he said.

Mr Thumi says the only reason the prosecution is keeping the cases is because it wants to be seen as a champion for the cause of the hundreds of thousands affected by the post-election violence.

The ICC case has suffered several challenges. Top among them is the high drop-out rate of witnesses and Bensouda’s struggle to find new ones. Bensouda has alleged intimidation, coercion and threats as a cause of these withdrawals. But President Kenyatta’s legal team  has continuously dismissed the claims.

President Uhuru’s case is scheduled to start on October 7, but the prosecution, the defense and the court have already been discussing legal procedures for terminating it.