Destruction of drugs ship in Mombasa returns to haunt President Uhuru Kenyatta at ICC

The destruction a drug-laden ship in contravention of a court order has come back to haunt President Uhuru Kenyatta at the International Criminal Court.

Victims‘ lawyer Fergal Gaynor has latched onto the controversial destruction to demonstrate that Uhuru is “better placed to facilitate or to obstruct the provision of evidence to the court”.

Mv Al Noor was destroyed on August 29, off the coast of Mombasa, in an exercise supervised aerially by the President and top security leaders.

Two days earlier, Mombasa Chief Magistrate Maxwell Gicheru had rejected the State’s request to destroy the ship.

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On the day the ship was destroyed, the High Court, through Judge Maureen Odero, also issued an order stopping the intended destruction announced by Uhuru.

Later, defence lawyers and the Chief Magistrate criticised the destruction of the ship against court orders as a “big blow to the rule of law.”

And this is what the victims‘ lawyer at the ICC latched on. “The accused ordered and personally supervised the spectacular destruction of evidence in a pending criminal case on August 29, 2014.That destruction was reportedly in violation of an express order of the High Court of Kenya not to destroy the evidence,” Gaynor told the ICC judges while opposing defence calls for termination of the ICC case. He said the President openly violated his duty to respect, uphold and safeguard the Constitution, and to ensure the protection of human rights and fundamental freedoms and the rule of law

“If the accused can order the destruction of evidence in Kenya in violation of an order of the High Court of Kenya, he can surely order the delivery of evidence in Kenya to The Hague in compliance with a direction of this court,” Gaynor submitted.

Gaynor’s contention is that the reason the case against Uhuru has stalled is because he has used his position to frustrate the prosecution’s access to crucial evidence, which would dramatically revive it.

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The lawyer also cited the President’s renewed interest in pursuing Anglo Leasing architects as evidence that he can facilitate the production of the needed evidence.

Immediate transfer

He informed the judges that the President reportedly ordered the immediate transfer to Swiss prosecutors of potentially inculpatory evidence sought by Switzerland in regard to Anglo Leasing.

He claimed Uhuru had presided over “a practice of non-prosecution in Kenyan courts of post-election violence crimes” resulting in total impunity for those most responsible.

“Since he assumed office, the accused has not expressed any support for any kind of domestic accountability for the savage crimes which tore through Kenya. The existence of a policy of non-prosecution is confirmed by the fact that the International Crimes Division of the High Court remains inexistent and non-operational.”

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He said top government officials have consistently adopted positions which are aligned with the interests of Uhuru. He informed the court that the Government is currently pursuing amendments to the Rome Statute in favour of the President.

Gaynor said last year, Kenya’s top official attending the Assembly of State Parties conference supported numerous positions intended to shield Uhuru, but opposed those which appeared to expose him.

“The Accused described the Court in contemptuous terms in an address to the Assembly of the African Union in October 2013, which he attended with his Foreign Minister and the Attorney-General,” Gaynor said.

Other incidents cited include the Kenya Government’s petition to the United Nations Security Council to suspend the Kenya trials, and its opposition to a motion to compel witnesses in Deputy President William Ruto’s case to testify. Gaynor also cited a recent pronouncement by Attorney General Githu Muigai to a parliamentary committee looking into a petition against him. In the petition, Githu informed Parliament that no one apart from the President could sack him. “With such immense formal power and informal influence in Kenya, nobody is better placed than the accused to facilitate, or to obstruct, the prosecution’s investigations in Kenya,” he said.

Gaynor summed his submission by quoting the Truth, Justice and Reconciliation Commission report handed to Uhuru last year: “No senior Kenyan politician since independence in 1963 has ever been convicted of a serious crime.”

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Ship drug trafficking Uhuru Kenyatta destruction ICC