Probe wanting, admits Bensouda

The Office of the Prosecutor at the International Criminal Court (ICC) has, for the first time, admitted to making blunders in handling the post-election violence cases.

In its 2016-2018 strategic plan, which was released late last week, the OTP, which is headed by Ms Fatou Bensouda, admitted that its investigations into the cases against six Kenyans were wanting.

According to the document, the prosecutor’s office ended up in a difficult position after key evidence was found to be unreliable. It also criticised its own preparedness to take the cases for trial.

The lack of strong evidence led to the collapse of four cases, including the one against President Uhuru Kenyatta, which was terminated in March, after it was withdrawn by Ms Bensouda in December 2014.

In its new strategic plan, the OTP says: “The need to be trial ready as early as possible, building cases upwards where necessary and increased reliance on varied forms of evidence, will help avoid the recurrence of such challenging situations.”

Investigations into the violence that followed the contentious presidential elections pitting PNU’s Mwai Kibaki against ODM’s Raila Odinga were carried out when Mr Luis Moreno Ocampo was the ICC prosecutor.

Although critics claim he carried out shoddy investigations and relied on rumours for his evidence in the cases, Mr Ocampo has on several occasions dismissed such arguments.

In an interview with the BBC late last year, the former ICC prosecutor said the cases helped in preventing violence during and after the 2013 General Election in Kenya.

Ms Bensouda is now looking forward to implementing a radical shift in the way investigations are carried out before cases are taken to confirmation and trial stages.

By considering a “building-up strategy”, her office intends to focus on investigating fewer mid and high-level perpetrators as a means of strengthening evidentiary foundations for subsequent cases against individuals most responsible for crimes against humanity.

This, according to the plan, would ensure a “reasonable prospect of conviction for the most responsible”.

“Pursuing this in-depth and open-ended approach, the office will first focus on a wide range of crimes to properly identify organisations, structures and individuals allegedly responsible for their commission,” says the document.

Apart from Mr Kenyatta, other Kenyans who were taken to the ICC for alleged crimes against humanity committed during the 2007/2008 post-election violence are Deputy President William Ruto, radio presenter Joshua arap Sang, former Cabinet minister Henry Kosgey, former Head of Public Service Francis Muthaura and former Commissioner of Police Hussein Ali.