Kenya has told ICC Prosecutor Fatou Bensouda to accept that the case against President Uhuru Kenyatta has collapsed.
Bensouda is seeking to appeal a decision by the court not to sanction Kenya over alleged non-cooperation in the case.
But Attorney General Githu Muigai says the attempt to keep Uhuru’s case alive is frivolous, unwarranted and an abuse of the court process.
In a strongly worded response to Bensouda’s application for permission to appeal a decision not to sanction Kenya, Prof Muigai submitted that the prosecutor should relent and move on.
Githu said that Bensouda is simply engaging in a finger-pointing exercise to cover up the prosecution’s investigative failures.
“It’s unjust, unfair and an abuse of process to keep the time and resources of the court engaged around a case which, on the prosecution’s own recorded admission, has no prospects of proceeding to trial,” Muigai submitted.
“The case is weak and below the required evidentiary threshold in criminal cases – almost five years after investigations were commenced,” he said.
Late last year, Bensouda withdrew the case, but made a surprise application signaling that she is not done yet with the President.
She requested the judges to allow her to appeal their decision not to refer Kenya to the Assembly of States Parties for alleged failure by the State to disclose Kenyatta’s financial and phone records.
The judges had twice ruled that Kenya should provide the extensive list of documents required, which includes bank statements and phone data records, complete with Mpesa transactions, “by all means, including compulsion”.
But in their final ruling, the three ICC judges – Kuniko Ozaki, Robert Fremr and Geoffrey Henderson – declined to indefinitely postpone the trial and to sanction Kenya for non-cooperation, dealing Bensouda a staggering blow.
The judges expressed pessimism with Bensouda’s case, saying, “it is apparent the prosecution does not have any concrete prospects of obtaining evidence sufficient to meet the standard required for trial”.
However, Bensouda maintained that the trial judges had already made a finding that the Government of Kenya failed to cooperate, insisting that the only remedy was to refer Kenya to the Assembly of States Parties for non-compliance.
“The Trial Chamber cannot resile from the fact that it has already made all necessary findings for the purposes of Article 87(7), namely that the GoK failed to comply with a request to cooperate by the Court and that this prevented the Court from exercising its functions and powers under the Statute,” she stated.
A successful appeal could be a game changer in the case, since Bensouda had indicated that she could press for new charges because Uhuru’s case was not terminated.
“Mr Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she stated, withdrawing the case.
But the AG, who is also the government’s legal adviser, maintained that Bensouda and her team were out to redeem their image by heaping blame on Kenya for the collapse of the case.
“The matter is masked as an issue of cooperation, while, in reality, it’s a ploy for buying more time for the prosecution to make its way out of the mess it put itself in through shoddy investigations,” Githu stated.
The Assembly of States Parties is the ICC’s legislature or ‘General Assembly’, charged with management and oversight, including noncompliance with court requests.
But neither the ICC nor the Assembly of States Parties has effective enforcement powers.
However, individual member States, including Britain and France, could impose their own sanctions, including travel.