Fatou Bensouda has failed to prosecute Kenyatta case

As the case against President Uhuru Kenyatta approaches its end, the Prosecution refrain has been constant: the case is in trouble not because it lacks  evidence, or has unreliable witnesses, but solely because the Government of Kenya has failed to cooperate in supplying the evidence necessary to support her claims.

The problems with that spin on the case are familiar, though they will bear repeating. The first is very simple: Bensouda's arguments about the Government of Kenya's handling of her request for evidence are both inadequate and irrelevant.

Her claims are irrelevant because they do not solve the basic problem: she failed in the duty to prosecute the case competently.

And secondly, there remains clear unresolved problems with the witnesses and the evidence.

Perhaps the quickest way to see that the case has been incompetently prosecuted and investigated is to return to Judge Christine van den Wyngaert's verdict earlier in the case.

In it, the Judge makes two very useful rulings. The most important one is her witness (4), which is worth quoting extensively:

"... There can be no excuse for the Prosecution's negligent attitude towards verifying the trustworthiness of its evidence.

In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution's case.

This negligent attitude is particularly apparent in relation to Witness 4's evidence because, as the Prosecution concedes, 'the Office as a whole was on notice, prior to the confirmation hearing, of the inconsistencies in the account Witness 4 gave during his [second] screening'.

The Prosecution offered a number of explanations for overlooking the problems with Witness 4's evidence.

However, what all these explanations reveal is that there are grave problems in the Prosecution's system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff.

The Prosecution simply failed to vet its witnesses thoroughly enough. Those were witnesses under its control, and whose evidence was in their possession -- including, in the case of Witness 4, the inconsistent statements he swore.

The Government of Kenya did not stop the Prosecutor from running basic checks on what Prosecution witnesses had actually said. That is a simple necessity, if a case is to be competently prosecuted. The office of the Prosecutor simply failed to perform this duty, and they have paid a very high price, since it now seems that their negligence with evidence is likely to cause the case to fail.


The second point to make about Judge van Wyngaert's ruling is equally simple. She notices and stresses the fact that the Office of the Prosecutor only interviewed a majority of its witnesses for the first time after the case was confirmed. (That is in the second paragraph of the ruling to which I referred earlier.)

She also saw and stressed the point that the prosecution tried mightily to evade, obscure, and mitigate: that it was simply unable to explain why it had delayed so long in conducting the interviews.

No serious explanation was offered, and the judge concluded, rightly, that this was more evidence of the negligence of the prosecution in its investigation phase.

Indeed, the judge went further: she was led to the conclusion that the Prosecution failed in its obligation to investigate the matter.

Worse, she found that the Prosecution's conduct had violated the rights of the accused --- it had simply failed to do what was already in its power, and which it is was obliged to do under the Rome Statute, to demonstrate that the charges were sound.

The second problem follows from the first. The prosecution failed to vet its witnesses. Much of the work of gathering and collating evidence was left, instead, to intermediaries in Kenya.

But it turns out that the intermediaries were unreliable: the defence was able to produce good evidence that a key intermediary was willing to take money to incriminate the accused, as well as to intimidate potential witnesses who were unwilling to do his bidding, or to follow him in incriminating the defendant.

Again, the defence also showed good evidence that key prosecution witnesses had lied to the court: they said that they had written their statements independently, but linguistic analysis shows that one person probably wrote the statements.

There is also a strange inconsistency in the treatment of witnesses. Those who support the trials say they oppose impunity.

Yet they support the trials — and those trials are proceeding precisely because they rely on evidence from known perpetrators, who have been given immunity in return for their testimony.

It seems they support immunity from prosecution for known perpetrators. But this is inconsistent.

Supporters of the trial who support known perpetrators when they happen to be witnesses, are supporters of impunity for known perpetrators.

You cannot support immunity for witnesses who perpetrated these crimes, and then say that you are against impunity.

Of course, it's convenient for the Prosecution to now turn around and claim that the failure of its case was caused by the obstruction of the Kenyan government.

But the fact of the matter is that the case was badly flawed, even when one looks at the evidence that was already in the Prosecution's possession.