ICC wrong not to grant stay of proceedings

Mohamed Abdi} UHURU’S CASE

On 10th October 2013, the defence of President Kenyatta made an application before the ICC seeking a permanent stay of the proceedings due to abuse of process. This application raises fundamental legal and evidentiary issues that have been discussed in Kenya since the first prosecutor named the first six suspects before the court.

The issues raised in the application have formed a matter of intense debate in the country as there has been disquiet since 2010 that the prosecution did shoddy investigations, relied on corruptly procured witnesses and used untrained intermediaries.

There have also been accusations that some individuals who committed international crimes were shielded from facing justice and that those hauled before the ICC are mere sacrificial lambs or being politically persecuted.

A stay of proceedings by its very nature is a decision by a court to stop trials of an accused so that fundamental issues which touch on the rights of an accused to a fair trial can be determined.

It is normally granted so that the court does not occasion an injustice to the accused and especially because of sloppy prosecutorial investigations, handling of evidence and witnesses.

In this case, the defence accused witness 118 of intimidating and interfering with its potential witnesses and embarking on a wide scale course of conduct against them for the benefit of the prosecution.

It also accused the same witness, in a public redacted version application, of bringing ten prosecution witnesses and, therefore, they wanted that evidence considered irremediably tainted by their illegal conduct as uncovered by the defence. Above all, the same witness was accused of preventing some potential defence witness from co-operating with the defence team.

Accusations against the prosecution witnesses extended to witnesses 11 and 12, who form a strong foundation of the case against President Kenyatta now that witness number 4 bolted out of the case. The accusations against these witnesses are grievous and expose the underbelly in the prosecution team.

EXTORTION CONSPIRACY

It also portrays serious defects in the prosecutorial investigation process and overall has a bearing on whether the ICC can be trusted to offer justice for the accused or not.

In addition, the question as to whether ICC will also offer justice to victims or not arises and it gets complicated because the Chamber agrees that the prosecution did not do investigations in a manner above board but only disagrees on the need to stay the proceedings or hold an evidentiary hearing.

The two prosecution witnesses have been accused of interfering and tampering with the collection of evidence though channels provided by the prosecution, attempting to extort money for favourable evidence and specifically, witness 12 is accused of changing his evidence to favour the prosecution because of payment of money.

In this regard, although the prosecution also made submissions to counter the accusations against their witnesses, a critical question of why the Chamber refused to stay the proceedings and or hold an evidentiary ruling arises. In fact, this is compounded by the fact that in the decision of this ruling, the Chamber noted with concern the supporting materials which tends to support the complaint that witness 118 may have coached certain prosecution witnesses and sought financial gain for participating in the case.

Further, the observations by the court that it noted attempted interference with the collection of evidence and that the form of extortion conspiracy alleged may constitute a criminal offence raises questions on why the Chamber did not grant even a conditional stay of proceeding or an evidentiary hearing.

Is it because the court was shy or afraid of making such bold decisions? Further, the insistence by the Chamber that the issues raised by the defence can be answered during the trial raises questions as to why the Chamber is ready to violate the rights of the accused not to be subjected to prosecutorial malpractice.

JUDICIAL SAGACITY

The Chamber ignores its own threshold on when a stay of proceedings can be granted as it elaborated in Thomas Lubanga case and continues to make a self-preserved ruling that only glorifies witnesses who have been accused of criminality and obstructing justice.

Above all, the most disturbing decision of that ruling is when the Chamber summarises that an application under Article 70 of the Rome statute by the prosecution can help address the issues raised by the defence.

I term it disturbing and absurd as the prosecution is on trial on this matter and, therefore, the Chamber was supposed to be the neutral arbiter, which should not  have left the prosecution to resolve this matter. The Chamber, therefore, erred by not exercising judicial sagacity on this matter, instead choosing to pass the buck to the prosecution. 

The writer is Chairman, Mandera Youth for Peace. Editor’s Note: Columnist Dominic Odipo resumes next week.