By: FELIX OLICK
ICC Prosecutor Fatou Bensouda has given the clearest indication yet that President Uhuru Kenyatta is not off the hook of crimes against humanity prosecutions. In a 20-page response to victims’ lawyer Fergal Gaynor, Bensouda said that she has only temporarily suspended investigations in Kenya and fresh requests for warrants of arrest could still be made.
“The Prosecution’s letter to the LRV [Legal Representative of Victims] does not state that the Prosecution has permanently terminated investigations in the Kenya Situation, or that it has concluded ‘not to proceed’ with a prosecution against Mr Kenyatta,” Bensouda said.
“To the contrary, in its letter, the Prosecution stressed that it would continue to monitor the situation, listen carefully to people who come forward with evidence and make further applications for warrants of arrest or summonses to appear if circumstances change and the necessary evidence emerges.” But lawyers close to the President dismissed the latest move.
“This case is as dead as a dodo. To flog a dead horse is to simply waste time,” said a lawyer known to be close to the head of state but who asked not to be named because he is not authorized to speak for the President and his team. Gaynor, an Irish lawyer, had petitioned the Pre-Trial Chamber to compel Bensouda to continue investigations against the President and his former co-accused Francis Muthaura and Hussein Ali.
Muthaura is a former head of the Civil Service and secretary to the Cabinet. Ali is a retired Air Force general and former commissioner of police. Bensouda said she shares the victims’ frustration because justice has not been done, but opposed Gaynor’s plea, saying he “has no standing to make such a request”.
Last week, the ICC Appeals Chamber ruled that trial judges will have to reconsider whether Kenya cooperated properly with prosecutors in the President’s case. Bensouda wants Kenya sanctioned for non-cooperation. These details emerged as radio broadcaster Joshua arap Sang expressed fears that he and Deputy President William Ruto, whose case is still in court, could be unjustly convicted, following the admission of recanted witness testimony.
But in two separate applications to the trial judges, Ruto and Sang made a passionate plea to the Chamber to let them appeal the decision. The ruling delivered last week has sent shockwaves deep into the DP’s political inner circle, with 2017 presidential politics coming into play. “Certainly the issues raised, and the resulting decision to admit the prior statements of witnesses, may affect the outcome of the trial,” Sang told the judges.
“The statements contain incriminating information about Mr Sang, and the Majority [trial judges] has indicated that they will weigh the reliability and evidentiary weight of the statements in the final assessment for purposes of determining the verdict,” Sang’s lawyer Katwa Kigen said. Ruto’s lawyer Karim Khan protested that the admitted “hearsay” evidence is central to the crimes against humanity charges against his client.
“The evidence is neither background nor non-contentious, but is said to be central to the case against Mr. Ruto,” the British lawyer said, raising 11 grounds of appeal. On Wednesday last week, the ICC judges admitted into evidence the testimony of five recalcitrant witnesses, a move that legal experts say could complicate the case against Ruto and Sang. In their ruling, the three-judge Bench agreed with Bensouda that there was a systematic scheme to interfere with witnesses in the case.
However, in his leave-to-appeal notice, Khan said the decision will seriously impact on the defence strategy and unnecessarily lengthen Ruto’s trial. Given the evidence’s importance, Khan said, it will impact on every aspect of the trial, going forward, “including the evidence to be addressed in any ‘no-caseto- answer’ motion, the witnesses to be called in any defence case and the evidence which may be relied upon.”
Ruto and Sang are charged as indirect co-perpetrators in commission of three counts of crimes against humanity – murder, deportation and persecution.