ICC Prosecutor says Kenya blocking key evidence on Uhuru Kenyatta's case

President Uhuru Kenyatta during a past appearance at the court. [PHOTO: FILE/STANDARD]
By WAHOME THUKU

NAIROBI, KENYA: The prosecution has signalled it is no longer confident of pressing a credible case against President Uhuru Kenyatta at the International Criminal Court. It emerged prosecutors were just clutching at the last straw - the President’s withheld financial transactions during the 2007/08 post-election violence – but admitted that disclosure, too, may be insufficient.

Prosecutor Benjamin Gumbert told the Trial Chamber that only after accessing the accounts would they know if they had evidence to proceed with the trial, having earlier acknowledged efforts at new evidence had yielded nothing.

“We have exhausted all reasonable prospects but we are under a duty to continue with investigations. We have to take a realistic view as prosecutors on which stones could be turned. As stones get less and less promising we have made a decision that the remaining stones are characterised as pebbles and the realistic prospects that turning them will yield evidence is minimal,” Gumbert told the judges.

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Several times, Presiding Judge Kuniko Ozaki pressed the prosecution to explain whether the financial information, which the prosecution claims the Government has stonewalled, would be enough to sustain the charges without witnesses.

At one point, perhaps underscoring the despair in prosecuting the case involving the first sitting President, the prosecution appeared more concerned about the procedure of ending the trial: that the proper way is for the prosecution to withdraw the charges instead of the judges terminating the case.

But the prosecution insisted it would not let go of the case until action is taken to compel the Government to disclose the financial records of the President, hoping that would yield a smoking gun.

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As a result, the fate of Uhuru’s trial at ICC now seemingly rests on the single stroke – the financial records of his bank accounts in 2007 and 2008.

MOVE FORWARD

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The ICC prosecution conceded that the contents of Uhuru’s bank statements remained the only piece of evidence they hoped to rely on to move the case forward.

And failing to trace any tangible evidence in the withheld statements, the prosecution said, they would withdraw the charges against him.

Consequently, the prosecution wants the Trial Chamber V(b) to compel the President to disclose the withheld statements, which would be key to revealing his financial transactions during the time.

The prosecution set that revelation as the condition before they could decide whether or not to terminate the case.

But Uhuru’s lawyer Steven Kay dismissed the condition, saying the prosecution had changed the course of the proceedings after realising the case was crumbling.

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Kay accused the prosecution of building up hopes among the victims and the Kenyan public that they had a tight case, yet the evidence, he claimed, was based on falsehoods from witnesses 4 and 12.

DELIBERATE OBSTRUCTION

Uhuru’s financial accounts and transactions became the subject of Wednesday’s status conference proceedings in The Hague, where the prosecution was expected to explain their plans for the future of the case, having admitted earlier that they had no evidence to carry on with the trial.

Wednesday’s hearing coincided with what had earlier been set as the commencement date of the trial but the prosecution sought a postponement after admitting they lacked evidence to proceed.

“The evidence about Mr Kenyatta’s financial transaction at the time is available and that has not been denied by the Kenyan government nor Kenyatta himself. Unfortunately, it has been withheld from the prosecution through deliberate obstruction by the Government,” said Gumbert.

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“Therefore, the prosecution has not been in a position to consider whether or not that evidence supports the charges and the trial to continue. We do not know what is contained in those statements because the Government of Kenya has prevented us from accessing them,” he added.

The prosecution claims they have been asking for the records for the past two years to no avail. The statements are needed to prove allegations that Uhuru financed the Mungiki operations in the Rift Valley in the wake of the violence. He is accused of having spent millions of shillings to enable the Mungiki embark on the retaliation mission in Nakuru and Naivasha.

“It has always been a central part of the prosecution’s case that the accused financed, at least in part, the violence,” he said, adding that he could not rule out that the evidence could be sufficient to allow the case to go forward.

Kay traced the turbulence in the case to decisions made by judges at the Pre-Trial Chamber, saying the confirmation was based on false evidence.

He said the trial could not proceed on the basis of statements in the media or narratives designed to become evidence.

“That narrative, however, with all its passion, was based upon false evidence,” he added. “No court can permit in such circumstances a miscarriage of justice that false evidence be the basis for continuation of proceedings. That is denial of justice to the party accused.”

The defence lawyer said he had all through warned the court that the evidence was based on falsehoods and there was likelihood of a miscarriage of justice.

“We repeatedly alerted the court, the prosecutor as to the consistencies and falsity of the evidence upon which they were seeking to rely. Our warnings were not heeded,” he said.

Kay said the prosecution had in the past four years accessed witnesses and statements in Kenya, but the investigations were not for truth.

ENDING CASE

He blamed the Pre-Trial Chamber for confirming the charges without hearing the full evidence from the defence and basing its decision on the statements of two witnesses.

“We were limited to two witnesses and couldn’t call the 10 witnesses we wanted to call,” he said.

At the close of the proceedings last evening, the judges and lawyers were discussing the appropriate procedures of ending the case.

They were looking at the legal provisions on how a case is ended after confirmation of charges and before the start of the trial. They also looked at the difference between withdrawing and terminating the case.

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Uhuru Kenyatta Kuniko Ozaki Benjamin Gumbert