Politics clouds legal dimension of Uhuru Kenyatta case

The events of the past week with regard to President Uhuru Kenyatta’s appearance at the International Criminal Court have been very captivating for Kenyans.

However, the excitement was more focused on what happened in Kenya rather than what actually transpired in court.

The Kenyan mind and media were intense on the political implications of the President being the first to supposedly sit in the dock of a foreign court and what its implication would be for the sovereignty of the country and what the decision to appoint the Deputy President William Ruto to act as President would herald.

The danger with this stance in looking at the events of the week is that the majority of Kenyans missed the fact that there was a legal dimension of the case beyond the politics of it.

A positivist view of the matter is that a suspect facing trial for crimes against humanity was invited by the tribunal presiding over the case and he obliged — parochial as that may sound.

The idea here is that this case is first a legal matter, which will, hopefully, be resolved within the legal channels.

Whatever other political implications the case or the parties in it may bear on it.

In limiting the focus to the case as a legal issue, it will be remembered that the reason for which the judges before whom the case is being tried decided that the President’s presence would be necessary because the issues that were to be discussed at the status conference affected his rights directly and that the case had reached a critical juncture.

At hand were two applications by the prosecutor and the defence, respectively.

The prosecutor had sought an adjournment of the trial which was intended to start on October 7, 2014.

This was based upon the contention that Kenya, as a party to the Rome Statute, had declined to facilitate the prosecutor’s investigations by failing and or refusing to provide information sought.

This non-cooperation on the part of the government of Kenya, the prosecutor said, was the reason why the trial could not start.

Consequently, Mrs Fatou Bensouda wanted the court to adjourn the case indefinitely until Kenya complied with her requests.

The defence on the other hand argued that the continued requests by the prosecutor for adjournments bearing in mind that the commencement of the trial had been adjourned on at least three prior occasions at the request of the prosecutor was prejudicial to Mr Kenyatta’s rights to a quick trial.

They, therefore, sought an acquittal following Mrs Bensouda’s admission that the evidence in her possession would not tilt the scales beyond reasonable doubt.

TWO STARK CLAIMS

There is clearly a lot of material and information available to the court but which is not available to even keen watchers of the case, leave alone casual observers as most Kenyans are.

What the judges will have to decide are two stark claims in respect of what sometimes did not even appear to be the same set of facts.

The prosecution contends that the case should be adjourned for the reason that the Government of Kenya has declined to grant its cooperation to the prosecution’s request for several categories of details which would enhance its evidence and help it either take the case to trial or withdraw the charges.

It claims that it has sought these documents from the Government which has remained non-compliant for almost two-and-a-half years.

The prosecution claims that it has sought from Kenya details of the accused person’s bank accounts and statements over a period of three years, tax returns for a number of years, details of the accused person’s real estate property, company shareholdings and directorships and cell phone records for a specific period during the post-election violence from December 2007 to February 2008.

The government contended that it had provided this information but instead of three months before the further request was made for the three years.

Another set of information required are details of vehicles owned by the accused, and which it was admitted had been supplied before the prosecutor again demanded a different set of information with regard to all vehicles which the accused may have had access to.

Another contentious one was that the prosecutor sought copies of the accused’s tax records and complained that it was instead given the tax declarations which are derivatives of the information contained in the returns and do not normally include all the information in the returns such as directorships and shareholding in companies which was what the prosecutor appears to have sought by the request for the tax returns.

Of importance within this series of accusations is that the prosecution side admitted that it had no evidence on which it could claim that the obfuscation on the part of the government could be ascribed to any action on the part of the accused.

MOST POWERFUL PERSON

Not so for the legal representative of the victims. While most of the submissions were steered away from merger of the official role of the accused as President of Kenya and as the accused in the case, the legal representative made this attempt at walking that line of dichotomy.

He was direct that the accused also happened to be the most powerful person in Kenya in terms of formal power.

Therefore, in his view, the court ought not to overlook the possibility that if the accused desired it, then Kenya would comply with its obligations to provide the information the prosecution sought in this case.

A look at the transcripts of the status conference of October 7 in which the Attorney-General appeared on for the Republic of Kenya and that of the following day in which Prof Githu Muigai was excluded, it is clear that the issues in this case are convoluted and it is unlikely that any side will have a home-run on them.

It is now for the judges to make a decision on the respective applications. The decision, as and when it comes, is the one which may for once fuse the fates of all the parties to that case with Kenya because a finding that the Government is or has obstructed the prosecutor of the court in her work will portend something, however minor, for all the citizens.

By the same token, an outright acquittal of the accused will be no less significant for the country.

Mr Owino is the head of Legal Services at NMG