ICC judges to consider five options in Uhuru Kenyatta’s case

Defence of Mr Kenyatta at the beginnng of the Status Conference

By Nzau Musau Updated Thursday, October 9th 2014 

THE HAGUE: Judges have retreated to make a critical decision that will determine the fate of President Uhuru Kenyatta’s case at the International Criminal Court ( ICC). After arguments by defence and prosecution teams Wednesday in The Hague-based court, it was clear the judges would weigh five options, including the vital request by Uhuru’s lawyers to terminate the case against him and the prosecution’s plea for an indefinite adjournment that would have him remain an accused person.

Wednesday, President Kenyatta maintained a studious silence inside the ICC courtroom as the status conference called to discuss his case narrowed down to five options on the way forward following a stalemate over submission of Uhuru’s financial and telephone records that the prosecution are banking on, having conceded available evidence was not enough to sustain a trial. Uhuru, who prior to his departure for The Hague had transferred power to his deputy William Ruto so he could attend Wednesday’s session as a private citizen and avoid being the first sitting president to be hauled into the dock, waived his right to address the court in Wednesday’s proceedings. He did not utter a word even when provoked by Presiding Judge Kuniko Ozaki to say whether he understood he had a right to address the court or have his lawyers do so on his behalf. Uhuru gestured towards his lawyer Steven Kay who speedily rose to his feet and told the court that Uhuru would not address the court. Not even direct jibes at him by victims' lawyer Fergal Gaynor and prosecutor Benjamin Gumpert could nudge him in the four-hour session beamed live across the world. See also: ODM maintains Uhuru status has not changed As the status conference wound up to rapturous applause by hundreds of Kenyan leaders who had accompanied Uhuru, options available to the judges, as submitted to by the parties, were five: Termination of the case rendering an acquittal judgment in favour of Uhuru; suspension of the trial indefinitely or conditionally; order on prosecution to withdraw the charges temporarily; finding of non-compliance on the part of Kenya and deferral to ICC Assembly of State parties. Chief Prosecutor Fatou Bensouda, Gaynor and Uhuru’s lead lawyer Kay made passionate pleas to judges Kuniko Ozaki, Geoffrey Henderson and Robert Fremr to buy their respective arguments. Ms Bensouda and Gumpert, concluded their submissions by asking judges to either grant the indefinite suspension sought or demand a definite withdrawal of the case. “There can be no middle-way. The scales of justice now have to come down one way or the other,” Bensouda submitted as she called on Gumpert to summarise the evidence available thus far. Gumpert told the judges the missing evidence allegedly withheld by the Kenya Government would go a long way in either affirming the prosecution case or destroying it. He broke down the summary of evidence obtained from nine prosecution witnesses which “invoke” the necessity of the missing evidence.
He picked on the telephone records to demonstrate his point. He claimed the available telephone records of Uhuru at the relevant time show he communicated with the now discredited “Witness 12”, a Mungiki member, at least six times over the violence period. SAME NUMBER Using the same number, he also reportedly spoke 39 times with an MP whom prosecution alleges was the linkman between Mungiki and Uhuru over the violence period. He wondered what a Government minister could have been discussing with a Mungiki member. “It is possible this is the only number Mr Kenyatta had at the time, but as a wealthy man and a Cabinet minister, it is possible he had more. It is these other records that we want,” Gumpert said. Kay told the judges prosecution arguments Wednesday had confirmed the necessity of his request to acquit Uhuru. He said Uhuru was entitled to the judgement considering the “contours” the case had taken. He said the defence was repeatedly ignored on issues of credibility of certain witnesses, veracity of evidence and its sufficiency, and alleged professional misconduct. He wondered why the case was allowed to go to trial despite clear indications it was headed nowhere. See also: ODM maintains Uhuru status has not changed “What the prosecution is submitting as non-cooperation on the part of Kenya is actually a failure to accept plain answers which would have otherwise have assisted them to make some case of sorts. My client is entitled to his verdict of not guilty,” he said. Gaynor told the judges that failure of the Kenya Government to co-operate must be attributed to “President Uhuru” who also happens to be the accused. He said Uhuru’s right to an expeditious trial would not be trampled on if the case were to be suspended indefinitely. He drew parallels to the ICC case against Sudan President Omar Bashir, saying it would be foolhardy for the court to terminate it because of Bashir’s right to expeditious trial. He claimed the defining point of the stalled requests was that “you cannot bribe or intimidate telephone records". Gaynor asked the judges to defer the case until ASP exhausted all processes once the matter was referred there. He said a termination of the case would amount to a reward to the Kenya Government, which has worked flat out to frustrate the case. “This is a unique case which requires a unique response from the court. A price must be paid but who should it be who pays this price? Should it be the victims who have borne the brunt of the violence or should it be the accused, the principal author of the deadlock?"
Earlier on, Gumpert was at pains to explain the legal basis upon which the indefinite adjournment of the trial would be based, prospects of the adjournment and consistency of the adjournment to integrity of proceedings and rights of accused. Gumpert conceded the alleged non-cooperation of the Government could not be attributed to Uhuru in his capacity as the President. CASE LAW “I will not provide any case law or specific provisions of the statute which guides the making of an indefinite adjournment. I am basing it on the chamber's responsibility to regulate the proceedings. It needs no support or law because these are exceptional steps taken when justice requires them,” he said. Judge Henderson asked why the prosecution was not considering withdrawing the case and coming back with evidence once it obtains it as happens in Common Law jurisdictions. He said the provision appeared to be supported by Regulation 60 of the court. But Gumpert explained the court had granted adjournments before. He said the current status of the case amounted to an indefinite adjournment since no date has been fixed and trial has not started as scheduled. See also: ODM maintains Uhuru status has not changed Henderson did not relent. He asked what good it would serve to adjourn the case indefinitely, “keep the court resources engaged” without any guarantees of that adjournment eventually paying back. He persisted on the withdrawal argument. Gumpert conceded: “Frankly, this is within the range of options available to this court. Without having much thought about it, I would say it is an option. The court must, however, balance and consider circumstances.” He complained the court may arrive at a “disastrous interpretation” if it appeared to give way to state parties to torpedo justice by dropping cases where non-cooperation was cited. Judge Fremr wondered why prosecution was insisting on indefinite adjournment if it continued to believe little would change. “The truth is we have run out of hooks on which to hang the date the case would resume. The only realistic end point for us would be when Kenya provides what we want,” Gumpert said. Gaynor opposed Henderson’s idea of a temporary withdrawal, saying that would be the end of the case. He said prosecution would expend energies on other cases.
Kay said Uhuru’s rights as an accused must be respected. He said the fact that prosecution conceded they could not blame him over Government’s failure should impress the judges when making a final decision. Kay tickled those in the public galleries when he responded to Henderson’s inquiry on the difference between ICC and domestic jurisdictions where the prosecution has control over investigative arms. He said OTP officers had been jamming Nairobi airports fetching one form of evidence or the other. Kay said: “I’ve drawn a line in the sand and I do not have to produce any more evidence. I’ve not received any credit for the evidence I’ve submitted to OTP.” Inside the courtroom, Uhuru sat next to his instructing counsel Desterio Oyatsi. His other lawyer, Ken Ogeto, sat next to Mr Oyatsi. His family members occupied the first bench of the first-floor public gallery - his wife Margaret, daughter Ngina, sisters Nyokabi and Kristina, aunt Beth Mugo and uncle George Muhoho. His brother Muhoho, personal assistant Jomo Gecaga, Solicitor General Njee Muturi, Cabinet ministers Charity Ngilu, Judy Wakhungu and Najib Balala, Attorney General Githu Muigai, senators, members of the National Assembly and other Kenyans watched from the galleries.