A former prosecutor at the ICC has said that it is only a matter of time before the case against President Uhuru Kenyatta collapses. ICC Chief Prosecutor Fatou Bensouda said yesterday that her office had finished reviewing the evidence against Uhuru, as ordered by the Trial Court.
Nick Kaufman, who was a prosecutor at the International Criminal Tribunal for the former Yugoslavia, said the case against Uhuru is almost beyond redemption. He was speaking to CNBCâ€™s Karima Brown last week in the programme â€œPolitical Exchange.”
Kaufman, who is now in private practice at the ICC in the Hague, said the prosecution’s evidence against Uhuru cannot sustain the trial. â€œFrom what I know, from what I have gathered from the records available, the case is built on straw. The case is going to fall apart sooner or laterâ€¦ unfortunately for international justice but not necessarily for Kenyatta,â€ he said.
He said the charges sounded â€œa little bit bizarreâ€ and that the way they have been investigated has not been professional. Kaufman said that ICC Chief Prosecutor Fatou Bensouda is carrying the burden of her predecessor Luis Moreno Ocampo who appeared to specifically target Uhuru who has since become Kenyaâ€™s fourth President.
â€œThe present prosecutor is completely different. The former prosecutor was extremely flamboyant, his control of the English language was poor. One could say in that sense that he was disadvantaged as a prosecutor,â€ he said in the show on Wednesday night.
Kaufman said Ocampoâ€™s handling of the cross examination with Uhuru during the confirmation of charges was â€œvery amateurish” and some questions were â€œbelow the belt.â€
By contrast, he says Bensouda is less publicity seeking, more acceptable to African society, and has a more professional touch on international justice. He hailed her for dropping the case against former Cabinet Secretary Francis Muthaura.
â€œShe had the decency to initiate the withdrawal of the case when she realized it was no longer sustainable. She may sooner or later come forth and argue the case against Uhuru can no longer stand,â€ he said.
At the ICC, Kaufman has represented Jean Pierre Bemba, the former Vice President of Congo DRC; and Callixte Mbarushimana, the Rwandan rebel leader who was acquitted of crimes against humanity last year.
Kaufman represented victims in the case against Sudan President Omar al Bashir and held a brief for Kenyan blogger Dennis Itumbi when he was accused of hacking into the ICC system.
He has represented Saadi Gaddafi, son of the deposed Libyan strongman Muammar Gaddafi, in his Niger extradition proceedings. In Ivory Coast, Kaufman has represented Charles Ble Goude, leader of the youth militia that helped keep in power former President Laurent Gbagbo, himself now on trial at the ICC.
At the Yugoslavia Tribunal, Kaufman was a prosecutor against Gen Pavle Strugar of Montenegro, the Yugoslav commander convicted of an attack on the Croatian port of Dubrovnik in 1991. Meanwhile, Bensouda has completed her review of President Uhuru Kenyattaâ€™s case as directed by the Trial Court.
The Prosecutor informed the judges yesterday that her office had engaged in a thorough review of all material related to Uhuruâ€™s case to minimize the scope of human error. Last month, the judges chided the prosecutor for failing to disclose certain materials to Uhuru.
â€œThe Prosecution undertook to individually review every relevant item in its possession regardless of the level of review each item had received in the past,â€ she said. All available investigative and prosecutorial staff were involved in the review.
The staff all reviewed their email accounts for several years back to ensure that materials obtained or circulated via email were identified and registered for disclosure. In the Ruto case, the victimâ€™s lawyer Wilfred Nderitu has insisted that the deputy President must be physically present at the Hague.
In his written submissions, he said it would be against principle for the Court to allow an accused to be absent from his own trial â€œwhere the accused voluntarily or consciously decided to pursue political office in the full knowledge of the fact that he had been charged with international crimes before the Court.â€
â€œThe traditional model of criminal litigation presupposes the incremental diminution of personal liberty in order to insure the integrity of the entire criminal process. It is for this reason, for instance- to take this to the extreme- that an accused person who is eventually convicted for serious crimes would not be sentenced to probation,â€ he said.
Judge Chile Eboe-Osuji is now the presiding judge of Deputy President Ruto case following Judge Ozaki’s withdrawal. Former presiding judge Kuniko Ozaki is now only the presiding judge of the Uhuru case. The two presiding judges were elected by their colleagues.