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Continuing with Kenya cases undermines ICC

By Mark Too | February 4th 2014

By Mark Too

Kenya: Anybody who’s been following the Kenya trials at The Hague, will have noticed that the defence and the prosecution employed sharply different strategies. The prosecutor’s strategy has destroyed any chance of a credible and safe conviction, and exposed the court to fatal damage.

Three main options remain on the table. We can have a trial, and end without convictions. We can go to trial, and end in convictions. Alternatively, the cases may be terminated. Keep those options in mind, because the only reasonable course left open – the only remaining move in the prosecutor’s endgame that will not leave the court permanently damaged – is to terminate the cases.

Take the first option: the cases proceed, and end without convictions. We now know there was prosecutorial bad practice in the pre-trial phase: investigations were carried out in the sloppiest of fashions; witness testimony went unverified; substantial new evidence was introduced after confirmation. We know that prosecution witnesses have proved unreliable.

Fatal damage

We also know the cases could have been terminated before trial. A majority of Kenyans are dissatisfied with the conduct of the case; a solid majority, over 60 per cent want it dropped.

The prosecutor has been told more than once that her witnesses and evidence are simply incapable of sustaining her claims. She has even recently admitted the point herself. She should have conceded the point, leaving the decision to terminate in the chamber’s hands.

If, in light of all these facts, trials proceed on the prosecutor’s insistence, then, in light of the prominence of the defendants, the court’s standing will suffer fatal damage.

No one will trust a court that put prominent defendants on trial when it was clear before the trial that there was no reasonable hope of conviction, and even when it was clear that a majority of Kenyans wanted their President and deputy’s trials terminated.

Prominent defendants will reasonably believe that the court is uninterested in fair trials. Defendants not so prominent will reasonably believe that if prominent defendants can’t secure a fair trial, then their chances are even poorer.

If the trials proceed, and convictions follow, the court will still suffer permanent damage, since the prosecutor’s strategy, and the defence’s response, have ensured that no conviction can now be credible.

The defence noticed that the witnesses available to the prosecutor were unreliable, and their procurement questionable.

This is starkly evident when we consider the sequence consisting of the defence’s application for a permanent stay of proceedings, the prosecution’s submission indicating that it lacked the evidence to bring the case to trial, and the defence’s reply that case should be terminated.

The defence argued, in its application for a stay, that the foundations of the prosecution case were so tainted by illegality, and these illegalities so serious, that it would be repugnant to the course of justice to let the proceedings continue.

The prominence of what appeared to be extraordinarily bad conduct by the prosecutor’s witness intermediaries, who, it appeared, were not above offering money to prospective witnesses, and intimidating those who proved unwilling to testify in terms that favoured the prosecution’s case, simplified the defence’s job.

The defence was also quick to raise inconsistencies in witness testimony, as well as what appeared to be coaching of the witnesses, and collusion to ensure that witness statements matched a common template. It moved that the trial ought to be permanently stopped, or, alternatively, that there ought be a hearing, at which the evidence was examined, because serious, reasonable doubts about the evidence had emerged.

No evidence

The prosecution’s reply was to assert that the defence claims were probably not true, and that even if they might be true, the proper place to test the reliability of the witnesses was at trial, not before. It proposed to rush as quickly as it could to trial.

Whose strategy handled the evidence better? It should be obvious that the defence is in the better position. The prosecutor has now admitted that she lacks the evidence to bring the President’s the case to trial. The court has ordered a status conference, at which the remaining evidence will be considered.

This essentially gives the President’s defence exactly what it wanted – a pre-trial consideration of the reliability and adequacy of the evidence. In its reply to the prosecutor’s brief admitting the failure of her case, the defence has shown that her evidence was not just unreliable, but that her witnesses, particularly witness 12 and witness 152 contradicted each other, and that she ought to have remedied these problems well before the trial.

The prosecutor’s strategy has failed; the defence’s strategy has been vindicated by the prosecutor’s own actions. The defence sought to show that the witnesses on whom the defence had based its case were unreliable, and that no testimony from them could secure a conviction in a fair and impartial trial. The prosecution argued at length that it had the witnesses, and the evidence, to bring the case to trial, that any problems with the reliability of witness testimony were better sorted out during the trial itself.

The essential thing was to have a trial, never mind the state of the evidence. The defence preferred to test the witnesses before the trial. The prosecution’s haste and sloppiness have destroyed its own argument.

In light of the failure of the prosecutor to properly vet her witnesses, and the failure of the witnesses who were used at confirmation, no credible trial can now be held. And this is true, even if, somehow, the prosecution secures a conviction after securing new witnesses and new evidence. A conviction at this stage would still be a permanent stain on the court’s reputation.

To repeat: even if there was a trial and a conviction, the process by which it was acquired would be so lacking in credibility, and so different from the charges and evidence relied upon at confirmation, that the conviction would be unsafe, and seen to be unsafe.

We remain with the only option that will preserve the court’s credibility: admitting that it got the cases wrong, and dismissing them for lack of evidence. Its reputation for partiality would be secured, and an injustice avoided. It is time to end the nightmare.

The writer is a former nominated Member of Parliament and a businessman.

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