A victims’ lawyer in the case facing President Kenyatta at The Hague has warned prosecutor Fatou Bensouda that adjourning the trial may not yield more evidence.
Mr Fergal Gaynor also accused President Kenyatta and the government of spending public resources on efforts to shoot down the case and denying the prosecution access to evidence.
With the case against Mr Kenyatta tottering on the brink of collapse due to lack of key witnesses, Mr Gaynor said the reputation of the International Criminal Court was at stake should the case be dropped.
The lawyer posed 14 questions which he wants the prosecutor to respond to during a status conference she has requested at the end of this month.
He questioned her failure to use the powers of her office to get witness testimonies which would have enabled her to proceed with the case.
In particular, he points to Article 87(7) which spells out penalties to member states of the Rome Statute that fail to cooperate with the ICC and the consequences on individuals accused of either intimidating or bribing witnesses to withhold evidence.
“It appears the prosecution has not taken all the measures open to it to secure access to relevant evidence and to present it at trial,” he said.
He seeks to know why the prosecutor has not taken advantage of the amended Rule 68(2) to seek ways of submitting the recanted evidence of tens of witnesses who dropped out.
“Rule 68 was amended recently by the Assembly of States Parties in the aftermath of what the prosecution described as ‘unprecedented levels of tampering and anti-witness activity’,” he added.
Ms Bensouda applied for adjournment of President Kenyatta’s trial after two key witnesses, particularly P-0011, withdrew, citing intimidation.
Mr Gaynor submitted that the even if the judges adjourned the trial date as requested by the prosecutor, the possibility of further investigations yielding more evidence was remote since Mr Kenyatta and the government hold the key to the targets.
“The accused is at liberty and is in full control of the Government of Kenya which has impeded access to relevant evidence. It would be unreasonable to permit the accused to benefit from deliberate obstruction of access to evidence by a government under his direct control,” he said.
He spoke of the campaigns at the African Union, the United Nations Security Council and at the Assembly of States Parties.
“It follows that any failure of Kenya to fulfil its obligations under the Statute – including obstruction of access to relevant witnesses and documentary evidence – must be attributed to the President of Kenya,” he said.
He also recalled the high level attacks on the ICC by President Kenyatta and Kenya’s envoys at international fora, including the UN headquarters in New York.
“ Never before in international justice has an accused had the authority and will to disregard his obligation to co-operate with the Court and instead to deploy state resources on sending large, high-level teams of state representatives to argue at the highest international levels in favour of bringing his trial to a halt, and to change the Rules in his favour,” he said.
He challenged Ms Bensouda to come out in the open and state the difficulties she has faced in accessing evidence in the case facing President Kenyatta and the half-hearted response Kenya’s authorities have been responding to requests for information.
He cited the recent letter by Attorney General Githu Muigai on the failure to provide information on the wealth of President Kenyatta and Mr Ruto as required by citing the Constitution and the provisions for individual rights.