Bensouda must be frank about why Kenyatta case collapsed


When ICC Prosecutor Fatou Bensouda withdrew her case against Uhuru Kenyatta she told the world that one of the key reasons her case collapsed is because the ‘Kenyan Government’s non-compliance [that] compromised the Prosecutor’s ability to thoroughly investigate the charge, as recently confirmed by the Trial Chamber’.

In her statement she further explains that the Kenyan Government failed to help her office ‘ever since the Prosecution submitted its revised 8th April 2014 request’.

The truth is that Madame Fatou Bensouda actually lied in this statement; at least twice!

The first falsehood is her attempt to connect the collapse of her cases to non-compliance by the Kenyan government. The truth is that a whole year before she even presented the revised request to the Kenyan government that she quotes above none other than an ICC Presiding Judge had rebuked her for bringing a half-baked case to court.

In April 2013 ICC Judge Christine Van Den Wyngaert told Bensouda that “There are serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation. In fact, I believe that the facts show that the Prosecution had not complied with its obligations under article 54(1)(a) at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started.”

The judge then pointed out that ‘ … the Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation …’ The Judge further stated that ‘there can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence.

In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case’. Judge Christine Van Den Wyngaert then excused herself from the case.

The second falsehood is her statement that the Trial Chamber ‘confirmed’ the Prosecutor’s position. A careful analysis of all the 3rd December 2014 decision by the Trial Chamber when they essentially gave the ICC Prosecutor a one-week ultimatum to either ‘put up a case her case against Uhuru Kenyatta or shut up’; in all the final 11 paragraphs where the judges state their own position on the case, there is no single point where the judges indicate that the Kenyan Government failed to comply.

In fact it is the Prosecutor they have a problem with.

In paragraph 46 the Chamber ‘noted with concern a number of factors’ were not in support of their granting the Prosecutor an adjournment on 31st March 2014, (though they still did give her the adjournment). The factors were (i) the prosecutors admission as to the insufficiency of the then available evidence, (ii) the speculative prospect of obtaining further relevant evidence in support of the charges, and (iii) the timeliness and thoroughness of Prosecution investigations in this case.’

In paragraph 50 the Chamber actually states clearly that ‘the onus is on the Prosecution to present a case ready for trial’ and then goes to state firmly that the Prosecution has had ample time in which to prepare the case, but failed. In the same paragraph the judges note that the Kenyan investigations run for five years, while proceedings have been ongoing for three years. Essentially they are telling the Prosecutor it is your responsibility, not that of the Kenyan government, to bring a proper case to court. You have had enough time to do it, and failed.

In paragraph 51 the chamber notes that the Prosecutor only started focusing on government cooperation after all her other investigative avenues had failed, and point out that had the Prosecutor ‘genuinely considered such compliance to be so central to establishing the charges’ she would have vigorously pursued it at a much earlier stage. Essentially the Chamber is telling the Prosecutor that she only made government non-compliance an issue when all her other investigations failed to bear fruit. They also indicate they do not believe she is genuine with this otherwise she would have raised the issue earlier in her case.

But it is paragraph 52 that basically completely exposes the Prosecutor’s argument on government non-cooperation as nothing but media spin. In this final paragraph the judges remind the Prosecutor that they had earlier found that she failed to take appropriate steps to verify the credibility and reliability of the evidence she brought to court. The Chamber then states clearly that as far as they are concerned this is the direct reason for the Prosecutor’s evidence ‘falling below the required standard at such a late stage’.

So #SomeoneTellBensouda to stop lying to Kenyans and the rest of the world. I must also point out that if she can lie this blatantly about Case 2 then there is every reason to believe she is doing the same in Case 1.

(Wambugu is a Director of Change Associates, a Political Communications Consultancy).

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