The fate of President Uhuru Kenyatta’s case in The Hague is likely to be determined on Wednesday when the status of the charges facing him are discussed.
International Criminal Court Chief Prosecutor Fatou Bensouda has indicated that her case against President Kenyatta has been weakened by the departure of witnesses and what she says is frustration by Kenyan government red-tape.
However, Ms Bensouda has fired a new warning that despite these setbacks, she was ready to open new prosecutions against other senior PNU officials and prominent Kikuyu politicians and businessmen that she alleges may be criminally liable for crimes committed after the 2007 General Election.
Ms Bensouda, in a new application filed on January 31, 2014, that had previously been marked as confidential, and which the Sunday Nation has seen, did not reveal who the new suspects are.
“The prosecution already has in its possession evidence to show that other senior PNU operatives and prominent Kikuyu politicians and businessmen may be criminally liable for the crimes committed. It would not be proper to go into details of that investigation at this stage,” she says.
She added that the case against Deputy President William Ruto and journalist Joshua Sang was “proceeding strongly”.
At least 1,000 people died and more than 600,000 uprooted from their homes in the violence.
THREE MONTHS ADJOURNMENT REQUEST
The Wednesday status conference on President Kenyatta’s case will discuss, among others issues, Ms Bensouda’s request to adjourn the trial for three months so she can carry out further investigations.
In her latest filing, the prosecutor says she no longer considers there to be a prospect of obtaining additional evidence in the President’s case. She further notes that her efforts to interview certain unnamed individuals had not borne fruit.
“The hostile stance of these individuals makes it unlikely that they will provide information useful to a prosecution of the accused,” she says.
She also observes that since her application to adjourn the case, several individuals had approached the prosecution but none had yielded evidence upon which she intends to rely.
Concerning a key witness who had earlier withdrawn his evidence, she states that even if he now agrees to testify his evidence together with other evidence currently in her possession would be insufficient to justify a trial.
While she accuses the government of frustrating her efforts to gather evidence, she acknowledges that even if the government were to agree to cooperate, the information may not yield evidence relevant to the case.
The prosecutor last month admitted that she did not have sufficient evidence to try President Kenyatta and asked the ICC judges to adjourn the case so she can look for more evidence.
President Kenyatta’s defence team then filed a confidential submission requesting the chamber to terminate the proceedings on the grounds of insufficient evidence.
The prosecutor has asked the ICC judges to reject the request. She said before the possibility of withdrawing the charges is considered, the judges should first rule on her application for a finding that the Kenya government had failed to comply with its obligations under the Rome Statute.
She said this would reward an obstructive government and send a message that the court will allow non-cooperative states to thwart ICC prosecutions. She went on: “Withdrawing the charges now would also reward the accused, who heads the government that has obstructed the court’s work.”
She accused the government of refusing to facilitate their request to take evidence from Kenyan police officers as well as obstructing access to records.
The prosecutor also claimed that the President’s defence team falsified telephone records data that they intended to use to prove that the prosecution witnesses were lying.
She said her investigators met an unnamed individual who indicated that all telephone records data are normally overwritten after three years.
This, it was argued, implied that data that had been recorded in 2007 or 2008 had obviously been overwritten and that those that had been provided to the court in 2013 were fake.
Further, the prosecutor stated that minutes of the National Security Advisory Committee provided to her had been filtered.
“They produced some, but not all, of the requested documents even though they had given the same minutes without redactions to the Commission of Inquiry into the Post-Election Violence,” she says.
The prosecution, she added, also asked for President Kenyatta’s financial records since a central allegation against him is that he financed the violence. This, she said, has not been provided by the government.
Ms Bensouda says their relation with the government after President Kenyatta took office had worsened.
“There is no indication that the Kenyatta administration will provide more assistance than the Kibaki administration” says the prosecutor.
She added that many individuals with information had refused to speak with the prosecution despite repeated attempts to contact them.
The prosecutor, for instance, says obtaining cooperation from members of Mungiki sect has been difficult due to the closed nature of the organisation.
“Mungiki members said to have interacted with the accused in person during the PEV were killed or forcibly disappeared,” she said.
“Even where individuals have been willing to meet with the prosecution, many expressed concern that they or their families would be subject to retaliation,” added the prosecutor.
She says the withdrawal of witnesses concerned that testifying against the President would expose them and their families to retaliation.
“Three witnesses – 5, 66 and 426 – have been withdrawn from the prosecution’s witness list on this basis,” she said.