Disclosure of evidence ended perception of a witch-hunt

The status conference convened by the trial chamber of the International Criminal Court (ICC) at The Hague last week established the fact that President Uhuru Kenyatta needs to clear his name.

Judges asked prepared questions, meant to clarify the facts and the law on two big applications that are pending for their decision.

The first decision the court has to make is on an application by the prosecutor seeking a finding that the Kenyan state has failed in the obligation to co-operate with the court, as required by the Rome Statute, and seeking an indefinite adjournment of the case until Kenya complies.

Such a finding would trigger a reference against Kenya to the Assembly of State Parties.

The Rome Statute provides that “where a State Party fails to comply with a request to co-operate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of State Parties or, where the Security Council referred the matter to the Court, to the Security Council.”

The application for a finding on non-co-operation is based on allegations of failure by Kenya to furnish the prosecution with telephone, land and bank records for Mr Kenyatta.

After much recrimination, the court eventually entered into a process of supervising compliance by Kenya, represented by Attorney-General Githu Muigai with the prosecution’s requests.

Three status conferences, the last one on the day before that of the President, have taken place during which the court sought to assess progress in compliance with the requests for co-operation.

During the Attorney-General’s last status conference, characterised by testy exchanges between the trial chamber and Mr Muigai, the prosecution declared that it had reached a deadlock in its endeavours on co-operation from the Kenyan Government.

However, the Attorney-General disputed this conclusion asserting that he had given all the information he can within the limits of Kenyan law.

The second application is by the Kenyatta defence, which has asked “the Chamber to deny the prosecution’s request for a further adjournment, terminate the proceedings, and issue a final determination of the charges against Mr Kenyatta.”

Granting this application would amount to an acquittal and no future proceedings can be commenced against the Mr Kenyatta.

In support of the application, the defence has pointed out that the Rome Statute guarantees Mr Kenyatta’s fundamental fair trial rights, including a right to trial without undue delay, and argued that “after five years of fruitless investigations, the prosecution must not be permitted to engage in a disingenuous referral of responsibility for the collection of broad categories of evidence to the Government of Kenya, having presented a false case against Mr Kenyatta.”

RIGHTS OF ACCUSED

During the status conference last week, the court was interested in ascertaining legal authorities that can support a decision for an indefinite adjournment; on the effect of an indefinite adjournment on the trial rights of the accused, particularly the right to a speedy trial, and the integrity of the proceedings; on the possible length of an adjournment, if one is given; and on the linkages between the possible adjournment of the case and possible procedures before the Assembly of State Parties, in case the court was to make a finding of non-co-operation.

Both the prosecution and the lawyer for the victims argued that if the court was to make a finding on non-co-operation, thus referring the matter to the Assembly, it would make sense to have an indefinite adjournment as to fix a fresh hearing date would be pointless unless co-operation is first secured.

The prosecution also argued that in the event of a non-co-operation finding, it would be necessary to keep the case alive until the Assembly’s procedures were completed.

Although they conceded that there was no evidence that Mr Kenyatta had personally interfered with the collection of evidence, both the prosecution and the lawyer for victims argued that the entity that had failed to co-operate was the Kenyan state of which Mr Kenyatta was the head, a position conferring on him the legal duty to ensure co-operation.

To dismiss the case, as urged by the defence, would reward non-co-operation.

They also argued that to allow the prosecutor to withdraw the case, even though preserving the possibility of bringing it back if more evidence was found, would signal an end to the case, since the pressure on Kenya to co-operate would then diffuse.

The prosecutor also argued that the right to expeditious trial had to be considered alongside the conduct of the accused, and provided the example of Sudan’s President Omar el Bashir, who cannot argue that his right to trial within reasonable time has been breached because he is responsible for delay in the commencement of the trial against him.

The judges questioned the defence on the difference between the position of the prosecutor of the ICC, on the one hand, and a prosecutor in a domestic court, on the other.

The former relies on the state from which the case has been referred for investigative support, while the latter controls the investigation function in the case.

The defence, however, rejected this argument, and said that since the process leading to the confirmation of charges, over which the prosecution was in complete control, there had been a degrading of the evidence that entitles the accused to an acquittal.

He argued that what the prosecution was calling a failure of co-operation was, in fact, a series of negative answers provided by the government which the prosecution was failing to recognise as co-operation.

HIGHLIGHT

The highlight of the conference came at the end of the day’s proceedings. The disclosure by the much-criticised prosecution of a summary of the case it says it has built against Mr Kenyatta was the news of the conference.

ICC prosecutor Fatou Bensouda asserted that “there remains a considerable body of evidence that implicates Mr Kenyatta” and then allowed Benjamin Gumpert, the prosecutor in the case, to provide a summary of the evidence.

The summary, said to be the substance of the evidence of nine available witnesses, alleged a link between the President and members of the Mungiki, which were particularised, and which Mr Gumpert said raise uncomfortable questions for the President. He concluded that this “completely destroys any suggestion that there is no case at all against Mr Kenyatta.”

The victims’ lawyer, Mr Gaynor, submitted that gaps in the case against Mr Kenyatta turn on telephone records, which is why there has been insistence on access to such records.

The prosecution needed a strong performance after months on the receiving end of attacks by the defence, and the Kenyan state, which have always portrayed the case against Mr Kenyatta as a fabrication.

The fact that the trial chamber had pushed for a high-level engagement on the future of the case, by requiring the President in court, was evidence that judges are considering a big decision, one the prosecution may not like.

Whatever the decision after the status conference, its main result, totally unforeseen, is that it provided a high profile forum for the prosecution to state its case against Mr Kenyatta.

While the prosecution would have preferred to continue playing its cards close to its chest by not having to disclose its case, the disclosure nevertheless will re-balance the one-sided narrative that has affected the case for so long and led to the perception that the case is a witch-hunt.

Even though Mr Kenyatta remains innocent unless otherwise proved, allegations of a witch-hunt are difficult to sustain in view of what the prosecution alleges against him, and the wholesale condemnation of the ICC proceedings will lose its credibility.