Fergal Gaynor contends that the application is one of many stall tactics President Kenyatta has employed and would be, “repugnant and odious to the administration of justice,” should trial chamber V(b) allow it/FILE
Fergal Gaynor contends that the application is one of many stall tactics President Kenyatta has employed and would be, “repugnant and odious to the administration of justice,” should trial chamber V(b) allow it.
“The application is made in the context of a multi-faceted campaign by the accused, supported by his Government, to avoid trial,” Gaynor’s response reads.
He argues that President Kenyatta’s rallying of the African Union against the ICC and the subsequent petitioning of the United Nation’s Security Council for a deferral is proof of the defendant’s campaign to avoid trial.
“International efforts to support that campaign include an address by the accused on October 12, 2013, two days after the defence filed the application, in which he described the court to the African Union as “[a] painfully farcical pantomime” and as “the toy of declining imperial powers”. The accused also asserted that “we only get bias and race-hunting at the ICC,” Gaynor quoted.
The lawyer also argues that allowing a stay of President Kenyatta’s case in order to allow for a pre-trial evidentiary hearing could cause more prosecution witnesses to withhold their testimony.
“The risk of withdrawal of key witnesses is already serious. The Kenyan media has heavily publicised the withdrawal of prosecution witnesses in this case and in the Ruto and Sang case. The Ruto and Sang trial has also seen widely-publicised efforts to reveal the identity of a protected witness during the proceedings,” Gaynor reminded the chamber.
He also made the case that the credibility of the prosecution witnesses can be challenged during the trial process and witnesses OTP-118, OTP-11 and OTP-12 need not be subjected to a pre-trial evidentiary hearing.
“The risk that those would not return to testify if exposed to such an experience is considerable,” Gaynor argues.
More compellingly however, Gaynor makes the case that those he represents have waited for justice long enough and would suffer a grave injustice should President Kenyatta’s application be granted.
“The victims in Kenya see no sign of any genuine effort to prosecute before the Kenyan courts any of those responsible for the crimes committed against them. Rather, they see the accused and his Government making an enormous effort at the highest international levels to bring the present trial – which is their only hope of justice – to an end. To grant the application would truly be “repugnant and odious to the administration of justice,” Gaynor concludes.
