The Hague-based court on the spot as Uhuru case crumbles

By Kiratu Kamunya

Kenya: The confirmation of charges against the ICC six as they then were in 2011 was met with shock and disgust by crusaders of fair trial and administration of justice.

This was especially so considering that ICC is the highest criminal court on the planet and hence legitimate expectations were in order that the court would dispense nothing more and nothing short of justice.

By this time, the defense teams for the six accused had already sounded the alarm against confirmation of charges on the basis of largely untested and unverified evidence. Their fear was that this would occasion gross miscarriage of justice for the accused.

Although it is true that charges against two individuals were not confirmed at that time, the confirmation of charges against the remaining four individuals raised evidential eyebrows. In fact, it did not take long before the prosecution owned up to the fact that the case against Ambassador Muthaura had collapsed.

Interestingly enough, the material evidence and witnesses connecting Ambassador Muthaura to the charges by the prosecution were primarily the same as those connecting President Uhuru to the same charges.

Earlier on, the case against the former police commissioner Ali Hussein had been dropped by the pre-trial-chamber leaving President Uhuru as the last man standing trial of the original three individuals in the so called ‘PNU’ case. Ordinary and legal analysts have always found this to be unconscionable and that it is a matter of when and not whether the case will crumble.

True to prediction, the ICC prosecutor Fatou Bensouda has come out to admit that the case against our President may not meet the high evidentiary standards required for conviction in the ICC which basically euphemism for saying that the case was built on quick legal sand.

The case has basically been a house of cards.

The question on the lips of many remains which cards are these? Why did the prosecutor decide to hold on to weak evidence and unreliable witnesses for all this period? What was her main motivation? Was she a victim of her predecessor’s narrative of using Kenya as a lesson on how to manage elections? Has she been operating under external political pressure from those who perhaps wanted to effect regime change using the current ICC cases?

Or is the office of prosecutor hopelessly incompetent to carry out credible and satisfactory investigations commensurate with the status of an international court? Your guess is as good as mine. As answers to these and more questions are sought, and while they obviously put the ICC on the spot over its credibility, the travesty of justice for the accused and the victims alike is disturbing.

What will the prosecution say to all the victims who put all their hopes for realising justice on the office of the prosecutor?

May be the prosecutor will say she inherited the skunk from her predecessor Luis Moreno-Ocampo. Still, she should have disowned it, as soon as she realised the true identity of the pet.

Incredibly, the prosecutor has now applied for an adjournment of the case against the President ostensibly to look for more evidence. May be the President’s case as the title may suggest is one which comes with humongous political currency for the court at this particular point in time when the performance of the court over the years since its inception has been questioned.

The writer is a lawyer with Maina Ngaruiya Advocates.