Uhuru ICC case set for major decision

Monday February 3 2014

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President Uhuru Kenyatta’s case at the International Criminal Court enters a crucial stage on Wednesday when judges decide whether to terminate it or give the prosecution more time.

The President’s lawyers are expected to argue for the charges to be dropped while the prosecutor, Ms Fatou Bensouda, will be asking for more time to get fresh witnesses and evidence in the case sparked by the 2007-2008 post-election violence.

ICC judges convened the status conference to discuss the crimes against humanity charges against President Kenyatta.

The President will not be required to attend the status conference in person.

Ms Bensouda is scheduled to tell the judges what additional investigative steps her office has taken. The court will also review her request to adjourn the trial for three months.

The prosecutor had asked for more time to carry out further investigations in the case which was weakened by the withdrawal of key witnesses who had been expected to testify against Mr Kenyatta.

According to trial chamber V (b) judges Kuniko Ozaki (the presiding judge), Robert Fremr and Geoffrey Henderson, the court will also discuss the request by Mr Kenyatta’s defence team to end the case. The lawyers want the judges to dismiss Ms Bensouda’s request for the case to be adjourned.


Mr Kenyatta’s defence team — led by Mr Stephen Kay — had on January 13 filed a confidential submission requesting the chamber to terminate the case on the grounds that the prosecution lacked sufficient evidence.

In her response, however, Ms Bensouda asked the judges to reject the request. She said before the possibility of withdrawing the charges can be considered, the judges should first rule on her application for a finding that the Kenyan Government had failed to comply with its obligations under the Rome Statute.

Ms Bensouda has attributed the failure by the government to comply with its statutory obligations to Mr Kenyatta.

“He has been the President of Kenya since April 2013 and, as the head of government, is in a position to ensure that Kenya fulfils its obligations if he wishes it to do so,” she said.

“The actions of the government under Mr Kenyatta’s leadership have had an impact on the prosecution’s ability to investigate this case. It is this impact that the Chamber should address before any decision is made on the future of these proceedings,” she said.

The session comes hot on the heels of a letter by the African Union threatening to cease cooperation with the ICC should the court fail to address the continent’s demands by April 30, this year.

According to the letter dated January 29 and addressed to the court’s president, Mr Sang Hyung Song, the AU listed four issues it said posed the greatest danger of undermining the rights of accused persons.


The AU raised concern that the court implements low evidentiary standards and unregulated investigative techniques, which results in a collection of information as opposed to evidence.

“Key investigative functions are outsourced to unregulated and often privately funded intermediaries such as organisations and individuals who are not subject to the rules of the court and therefore not accountable to it,” read the letter.

“NGOs employ researchers who often have no investigative skills. From a comparative point of view, the whole process of outsourcing prosecutorial functions of the court…to the unacceptable detriment of the rights of the accused would be impermissible in any criminal justice system of member countries,” said the letter.

The AU also raised concerns over the court’s decision to accept private funding, often from NGOs. “Private funding can have the effect of directing the work of the court and thus influencing its impartiality or at minimum, appearing to do so,” the AU said.

The AU also took issue with the prosecutor’s power to initiate a case without the referral of a member state or the United Nations Security Council.

“Without a referral from a member state, the OTP runs the serious risk of lack of cooperation which undermines the integrity of an investigation,” the letter stated.

The AU asked the court to develop a plan “to repair” these issues in the interest of justice and inform them of “a pattern of concrete, satisfactory steps to remedy all these issues” by April 30, 2014.

“These issues are of the highest importance for its deposition of justice…therefore if the court fails to do so, the writers of this letter shall not extend further cooperation to the ICC, whether obliged by treaty or otherwise,” it said.