Fatou Bensouda in a spot as Uhuru case stalls one month to trial

President Uhuru Kenyatta’s case in The Hague may not go to trial as scheduled on October 7 with indications the International Criminal Court (ICC) Prosecutor’s chances of securing a conviction have seriously diminished.

ICC sources and lawyers familiar with the case told the Sunday Nation that the case related to the 2007/2008 post-election violence has “stalled” and is “not prosecutable”, meaning the trial chamber could soon be called upon to officially terminate it.

But there is also the possibility that Prosecutor Fatou Bensouda may again request Judges Kuniko Ozaki (presiding judge), Robert Fremr and Geoffrey Henderson for more time in the hope of obtaining the requested documents from the Kenyan Government.

On Thursday, the ICC judges ordered Ms Bensouda to confirm by September 5 whether she was ready to begin the trial of President Kenyatta on October 7.

“Noting the importance of timely and efficient preparations and in order to provide the necessary guidance for parties and participants, the Chamber orders the Prosecution to file a notice confirming whether it anticipates being in a position to start trial on the provisionally scheduled commencement date of 7 October 2014,” the order stated.

PROCEDURAL HURDLES

However, the opening of the trial on October 7 appears increasingly unlikely with a number of substantive and procedural hurdles for Ms Bensouda, some of which may force her to terminate the case.

First, as a requirement for the trial to begin, Rule 76 of the ICC Rules of Procedure and Evidence provide that the disclosure of evidence needs to be done in good time to enable adequate preparation by the defence.

“The Prosecutor shall provide the defence with the names of witnesses whom the prosecutor intends to call to testify and copies of any prior statements made by those witnesses,” Rule 76 states.

Rule 79 also requires the defence to provide evidence “sufficiently in advance to enable the prosecutor to prepare.”

The ICC public records show that since March 31, when the Trial Chamber set the provisional date for the commencement of the trial, the prosecution has only disclosed evidence on two occasions: on May 12 and July 10. Whether that is sufficient to start a trial remains uncertain.

Lawyer Evans Monari, who represented former Police Commissioner Maj-Gen Hussein Ali at the ICC, says the defence team needs time to prepare for trial.

“You need at least three months to disclose the evidence and the list of witnesses you are going to rely on before you bring someone to stand trial. This is so that either party is not caught unawares. The three months have been set by the court precedence. So the ICC is in a tight spot and the prosecution may be hard pressed to drag the accused to stand trial.”

In contrast, in the case against Deputy President William Ruto and journalist Joshua Sang whose trial resumes Monday, the prosecution has made seven disclosures between July 2 and August 22.

Secondly, and more disturbing especially for victims of the violence in which more than 1,000 people were killed, there is a possibility the prosecution could soon ask the chamber to terminate the case altogether given the difficulties they have encountered in getting Mr Kenyatta’s financial and property records. Lawyers familiar with the case, but who we cannot name, told the Sunday Nation that such a move is likely.

NO EVIDENCE AGAINST KENYATTA

On December 19, 2013, Ms Bensouda conceded that she did not have sufficient evidence to proceed with Mr Kenyatta’s trial and requested more time to investigate.

“Having carefully considered my evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr Kenyatta does not satisfy the high evidentiary standards required at trial,” Bensouda said.

She had hoped the additional evidence the prosecution was referring to would come from records of bank accounts held by Mr Kenyatta and his associates, foreign exchange transaction records, telephone records and M-Pesa transactions between June 1, 2007 and December 15, 2010.

She had also requested security and intelligence information records from the National Intelligence Service (NIS) relating to Mr Kenyatta’s activities before and after the post-election violence.

The request submitted to the Kenyan Government in April has only yielded Mr Kenyatta’s motor vehicle records, his telephone numbers and bank records.

The rest of the items requested, the government argues, are neither relevant nor necessary to the charges facing Mr Kenyatta. He is being accused of sponsoring retaliatory attacks against non-PNU supporters in the 2007/08 post-election violence.

In a filing at the ICC dated August 18, Attorney-General Githu Muigai emphasised “government’s ‘efforts of cooperation and good faith” but added that the prosecutor’s requests were too “broad and ambiguous”. Further, he wanted the prosecution to comply with the court’s requirements of “specificity, relevance and necessity”.   

TERMINATING CASE IS SHAMEFUL

The victims lawyer Fergal Gaynor said terminating the charges against President Kenyatta would be “shameful”.

“To raise expectations of justice in the minds of thousands of victims of horrifically brutal crimes, and then to abandon them in the face of state obstruction of access to evidence, would be shameful,” said Mr Gaynor.

As the reality sinks of the possibility that the case could be terminated, civil society activists are asking the government to establish a sound International Crimes Division (ICD) to deal with international crimes in Kenya.

According to Christopher Gitari of the International Centre for Transitional Justice, Kenya, the Judicial Service Commission has failed to release information regarding the progress of setting up the ICD since the discussions in Naivasha in January. “The JSC has not been robust enough to drive the issue to a logical conclusion. Instead, they are involved in sporadic engagements. The last we heard of it publicly was during the discussions in Naivasha in January,” said Mr Gitari.

Kenyans for Peace with Truth and Justice also released a report, A Real Option for Justice? on August 9 questioning the efficiency and efficacy of the proposed ICD, especially with regard to including crimes that have always been handled by ordinary courts.

“Removing these crimes from the ambit of magistrates’ courts and giving the jurisdiction to prosecute them to a division of the High Court would require a change in legislation and cannot simply be done by the Chief Justice through a Gazette notice,” the KPTJ report concluded.