Bensouda should admit that she has no case

There are two scenarios trial lawyers can’t stand in any court. A clueless and dithering prosecutor who doesn’t know when to throw in the towel and a judge who can’t read the riot act to a prosecutor to close his/her case.

Both are great obstacles to a fair criminal trial because the incompetence of these two critical players in the justice system compromises the integrity of the court and the rights of the accused.

Both scenarios compromise the long-term viability of the courts and can go a long way in irreparably damaging the very rationalisation of the courts as dispensers of justice.

These two scenarios have been the defining characteristic of the trial of President Uhuru Kenyatta and Deputy President William Ruto at the International Criminal Court (ICC) in The Hague.

Everyone knows the historic rationalisation of the cases by the previous ICC Prosecutor, Luis-Moreno Ocampo. Keen and objective followers of the trials expected the cases to crumble long ago and were surprised by their longevity and endurance to overcome a number of legal obstacles.

All, however, appreciated that it wasn’t the weight of the evidence that always propelled the cases to the next level. The cases were principally propelled by strong political will and the determinant forces who controlled all their facets and launched the trials along a political trajectory.

The shocking news this week about the two cases doesn’t surprise Kenyans. We have seen too many comedies of errors from both the court and the prosecutor.

First in the Ruto case, we have all along witnessed situations where the prosecutor is rarely able to conduct a criminal trial in line with known international standards.

She has broken every rule in the book. Witnesses have been fleeing as if the courtroom is on fire. How can a trial continue when witnesses retract their testimony en mass, give very serious reasons and implicate parties who undertook the exercise? Can’t the prosecutor see that her case is an embarrassment to her office, the court and the entire international justice system?

The parties advance two conflicting theories. The prosecutor contends that witnesses have been intimidated or even bribed. The defence contends that the witnesses were initially paid money, coached to implicate the Deputy President and promised a life of luxury and leisure in the West.

The truth of the matter is that the prosecutor didn’t do any investigation and instead relied on witnesses that were paid for by local NGOs.

PRE-SELECTED

The disintegration of the cases is explainable by appreciating that both trials are “designer” cases. Both Ruto and Uhuru were identified and pre-selected by a panel of local and international players and tailor-made evidence created to implicate them. That is the historic foundation of the two trials and the same inevitably undermined the cases.

President Kenyatta’s case is equally puzzling and more mortifying for the prosecutor. We have a prosecutor who, time and again, has told the court that mistakes were made in the case and no evidence exists to start a trial. What does the court do? Instead of closing the file, the court allows the prosecutor to engage and indulge in a sickening judicial jamboree. She makes one application after another on the president’s bank accounts, properties, title deeds, M-Pesa accounts etc.

To what end? Why should the court preoccupy itself with endless applications that have no bearing on a case the prosecutor admits is over! If the evidence doesn’t exist, why is the court reluctant to terminate the case?

Two important issues need to be addressed by both Uhuru and Ruto once Bensouda’s misadventure in Kenya ends. First, they should never forget the victims of the clashes. A fund must be created to address the many victims who are crying for help. Second, they must bring to justice the “panel” and actors who falsely conspired to frame them.

This is not a revenge mission. But there is a need to stop the political enterprise of a group of Kenyans who play god on the lives of others. The principal players who bought witnesses as political and commercial enterprises must face the full force of the law.

Senior Counsel Ahmednasir Abdullahi is the publisher, Nairobi Law Monthly [email protected]