President Uhuru Kenyatta off the hook, heat turns on Bensouda
After four years of anxiety over his trial at the International Criminal Court (ICC) President Uhuru Kenyatta can now sigh in relief following a decision by Chief Prosecutor Fatou Bensouda to drop the case.
Ms Bensouda filed the expected notice to withdraw the charges yesterday after the Trial Chamber V(b) declined to adjourn the trial on Wednesday.
But even as she let Uhuru off the hook, Bensouda turned the blame on the Kenya Government accusing it of frustrating all her efforts to access crucial information and evidence against the president.
She also blamed what she called “a steady and relentless stream of false media reports and an unprecedented campaign on social media to expose the identity of protected witnesses in the Kenya cases.”
The prosecutor said “concerted and wide-ranging efforts to harass, intimidate and threaten individuals who would wish to be witnesses” had also led to the collapse of the case.
The remaining option is for her office to institute further investigations and gather more evidence that can be used to charge Uhuru afresh. Such a move will be an uphill task given the history of the case.
On Wednesday, the Trial Chamber judges Kuniko Ozazi, Robert Fremr and Geoffrey Henderson rejected an application by the Office of The Prosecutor (OTP) to adjourn the case till a time when the government would cooperate with them.
The judges gave Bensouda one week to say if she would drop the case or whether she had gathered more evidence to try the President.
In her notice to the Chamber yesterday, the Prosecutor said: “In the light of the Trial Chamber’s decision, the prosecution withdraws the charges against Mr Kenyatta. The evidence has not improved to such an extent that Mr Kenyatta’s alleged criminal responsibility can be proven beyond reasonable doubt,”
She added: “As noted by the trial Chamber, this withdrawal is without prejudice to the possibility of bringing new charges against Mr Kenyatta ‘at a later date, based on the same or similar factual circumstances, should the prosecution obtain sufficient evidence to support such course of action.”
Uhuru was accused of being criminally responsible as an indirect co-perpetrator for the crimes against humanity of murder, deportation or forcible transfer of persons, rape, persecution and other inhumane acts.
The crimes are said to have been committed during the 2007-2008 post-election violence. The chaos were sparked by the controversial declaration of Mwai Kibaki as the winner of the December 27, 2007 presidential elections. More than 1,000 people were killed, 3,500 injured and up to 600,000 forcibly displaced. Property worth millions of shillings was destroyed across the country.
The Kenya situation was referred to the ICC by the government after efforts to establish a local system failed. Bensuoda’s predecessor Moreno Ocampo was allowed by the court to commence investigations in Kenya in March,2010.
On December 15, 2010 the prosecutor submitted an application to have six suspects summoned to the Hague based court and the request was granted on March 8, 2011. Uhuru, then Deputy Prime Minister and Finance Minister, appeared in court for the first time on April 8, 2011. The Pre-Trial of the case was conducted from September 21 to October 5.
The Prosecution claimed Uhuru helped to mobilize the Mungiki criminal organization to attack ODM supporters in Naivasha and Nakuru. Uhuru was charged in case two, together with former Police Commissioner Hussein Ali and former Head of Civil service Francis Muthaura. The charges against him and Muthaura were confirmed on January 23, 2012, while General Ali was let off the hook. Soon after Uhuru resigned as Finance minister but retained his position as DPM.
But the case has been collapsing bit by bit since the prosecution dropped key witnesses whose evidence had been solely relied on by the Pre-Trial Chamber to confirm the charges. The withdrawal of the witnesses forced the prosecution to drop charges against Muthaura.
The start of Uhuru’s trial has since been adjourned more than five time as the OTP locked horns with the Kenya government for alleged failure to produce Uhuru’s financial statements and records of his properties, said to contain vital evidence. The OTP sealed its fate when it conceded early this year that it had no sufficient evidence to take the case to trial.
Uhuru only appeared in the courtroom again on October 8, this year during a status conference called to assess the cooperation by the government. That was when the OTP applied to have the case adjourned till when the government would cooperate. In its decision on Wednesday, the Trial Chamber found that the government had failed to adequately cooperate with the OTP on the investigations.
The Chamber ruled that the non-compliance has not only compromised the Prosecution’s ability to thoroughly investigate the charges, but also hindered the court’s ability to fulfill its mandate of seeking the truth.
In her statement yesterday, Bensouda said: “I have persistently sought to secure the cooperation that my Office required from the Government of Kenya in this case in order to execute my mandate. Crucial documentary evidence regarding the 2007-2008 post-election violence, including concerning the conduct of the accused, can only be found in Kenya and is only accessible to the Prosecution through the assistance of the Government of Kenya.”
She said non-cooperation had deprived the victims of their right to know what transpired in 2007-2008. “It has further undermined my ability to carry out a full investigation. And finally, it has prevented the Judges from carrying out their critical functions of assessing the evidence and determining he truth,”
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President Uhuru Kenyatta International Criminal Court ICC Prosecutor Fatou Bensouda