Bensouda’s stern warning on Ruto, Uhuru trials

By Titus Too and Vincent Bartoo

ICC prosecutors will not hesitate to seek the court’s help if the Government or the accused in the Kenya cases fail to co-operate over next year’s trials.

Warrants of arrest would be issued if Uhuru Kenyatta and William Ruto fail to comply with court directives if elected President in the coming General Election. ICC Chief Prosecutor Fatou Bensouda said even if elected President, the two accused would be expected to attend to the trials at The Hague. She pointed out the trials, which begin in April, are a day-to-day process and she expects the accused to appear in person. Both Mr Uhuru and Mr Ruto have pledged to comply, with Ruto adding he saw no reason why he could not govern from The Hague if necessary.

Ms Bensouda said the two will stand trial regardless of their candidature and if either is elected President, he will be expected to leave executive duties to attend the case at The Hague. Kenya, she added, is a State party to the Rome Statute so if any of the accused declined to co-operate, the court would ask member states to execute an international warrant. Such warrants exist for a number of accused, including Sudan’s President Omar al Bashir.

The prosecutor said there has been no warrant for any of the four Kenyans that face trial because they went to The Hague voluntarily when summoned.

Speaking in Eldoret during an interactive forum with journalists organised by Internews, Bensouda repeated calls that the ICC process should be delinked from the country’s politics. She added that the accused before the court are also treated innocent until proven guilty.

The prosecutor expressed concern over the difficulty faced by the ICC in explaining that process had just coincided with the Kenyan elections and had nothing to do with it. She, however, maintained that the ICC would stick to its calendar despite the impending elections in the country.

She had addressed residents at Sirikwa Hotel where some called for fresh investigations into the 2007 post-election violence. Some locals said her predecessor, Luis Moreno-Ocampo, did not visit IDP camps to conduct investigations.

“Following the violence, we camped at the Eldoret showground and did not see any presence of ICC official. They should have come to us during the investigations,” said Virgina Muthoni, a victim.

Dorcas Chepkech said the violence was spontaneous and not planned.

“The violence erupted in regions including Kisumu, Coast Province, Lodwar among others. It should not be narrowed to Eldoret alone,” she said.

The residents also said they doubted the credibility of witnesses who will be relied by the ICC court, despite not knowing who they are.

Earlier, speaking during a tour of  post-election violence hotspots in Uasin Gishu, Bensouda denied claims the ICC had fake witnesses. She refuted claims the court relied heavily on evidence provided by the Waki Commission to charge four Kenyans facing crimes against humanity. Bensouda said the ICC did its own investigations in the Kenyan case including gathering its own evidence.

“The ICC and the Waki Commission are two separate processes. We had, and have nothing to do with the Commission,” she said.

Bensouda, however, confirmed that the court had received documents related to the post-election violence from Waki Commission. But she declined to say whether the documents included the names of the accused persons or the witnesses the court will use to prosecute Kenyans.

They include Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Head of Civil Service Francis Muthaura and Radio presenter Joshua arap Sang. Cabinet Minister Henry Kosgey and former Police boss Mohammed Ali, who had been charged alongside the four, were acquitted of their charges.

Complaints by victims

“Our case is based on the evidence collected from the witnesses we have, the details of which I cannot reveal now,” said Bensouda. The ICC Prosecutor was responding to complaints by victims of the post-election violence that the court did not gather evidence from them. She defended Moreno-Ocampo saying although he did not visit areas affected, it did not mean the court never gathered evidence from the regions. She said the ICC has investigators and analysts who gather evidence.

“You may never know how we gather our evidence and you do not know whether we have witnesses from among you,” she told locals in Burnt Forest.

When she landed at the Eldoret International Airport, Bensouda first headed to Kiambaa under tight security, where the Kenya Assemblies of God (KAG) church was burnt with people inside at the height of the post-election violence. She sought to know from survivors of the attack, exactly how many people died at the church saying the ICC had conflicting reports about the number of casualties.

“We have heard different stories about what happened here. Some say 70 people were killed, others 40. How many perished?” posed Bensouda.

Joseph Githuku, who lost his wife in the 2008 New Year’s Day attack, told the prosecutor that at the time, there were 15 families inside the church.

“No one knows the exact number of those who were killed. But bodies buried here are 36 and some of their identities are unknown,” he said. Bensouda termed the Kiambaa arson attack as the most serious incident in the Kenyan case, saying her visit there was “to establish the truth”.

After touring the Kiambaa church compound that is now a graveyard for the victims of the arson attack, Bensouda held a baraza at the nearby Kiambaa police station.

She later went to Rurigi in Burnt Forest for another baraza before heading back to Eldoret town for meetings with local leaders, civil society and the media.