ICC decision on Kenyatta evidence proves this isn’t about justice


This week the International Criminal Court continues justifying why some believe its operations have nothing to do with the pursuit of truth or justice. In one of those rulings only this court can issue; and from one of those incestuous arrangements that only the ICC can pull off (where the victim’s lawyer acts as part of the prosecution team); the court has ordered the Prosecutor to disclosure its Pre-Trial Brief on the Kenyatta case to the public following an application by the victim’s lawyer.

Basically Mr Fergal Gaynor, the victim’s lawyer in the Kenyatta case, argued that despite the court determining that the case should be withdrawn if the prosecutor does not have sufficient evidence to sustain it, the victim’s had the right to know the truth about the crimes committed against them, and the identities of those most responsible.

This is absolute balderdash. Mr Gaynor suggests that the victims do not know what happened to them and the court should allow the Prosecutor to tell them! There is also no way a competent lawyer can argue that the victims should be given the names of those who were responsible for what happened to them despite the fact that both the Prosecutor and court itself, have admitted that there is insufficient evidence to sustain a trial to prove that the suggested names were the ones actually responsible.

In my opinion the truth of the matter is that having failed to convince a competent court of her claims against Mr Kenyatta, the Prosecutor arranged with the victim’s lawyer for this request to be made and then connived with the court to ensure that she gets ‘carte blanche’ to prosecute the case she lost in open court, in the Court of Public Opinion. In this Court of Public Opinion she cannot lose because here she does not actually have to substantiate her claims; just make them and leave it to Kenyatta to prove they are not true. She will also not be cross-examined by anyone so she can make whatever allegations she wants; in fact the more sensational, the better.

Mr Kenyatta’s defence said as much in court, but were overruled on the basis that because the evidence Bensouda had was insufficient to sustain trial, then the publication of such evidence would not be prejudicial to Mr Kenyatta’s reputation. Bensouda now has the permission of the court to hold press conferences across the world and ‘explain’ her allegations against Mr Kenyatta. Essentially she can ‘prosecute’ him publicly. She can then sit back and watch as the international and local media do what she was unable to do legally; crucify Uhuru Kenyatta.

Bensouda knows she cannot lose. Once the story picks up in the public domain (and we all know it will) Uhuru has only two options. He can choose to go to the press and defend himself, which will just build the story and give the Prosecutor (and Mr Gaynor) some more media time. Or, he can sue her, and she will defend herself on the basis she was ‘ordered’ to do what she is doing by the court. In addition if he chooses to sue she gets another bite at the cherry she lost, which will be easier now because she will be ‘defending’ her case against Mr Kenyatta who will now be forced to prove his innocence.

Either way she wins!

Ironically one of the more prominent members of the Kenyan-ICC support group, Kenyans for Peace Truth & Justice (KPTJ) over the weekend admitted to what the Kenyatta defence alluded in its objections to this order. Writing in the Sunday Nation George Kegoro argues that the release of the evidence that Bensouda has had to the public ‘gives the prosecutor a chance to tell her version of the story’. Kegoro is basically confirming that this is all about Bensouda seeking an opportunity to prosecute her failed case in the Court of Public Opinion. KPTJ’s vendetta against Mr Kenyatta also gets a lifeline.

If only Kenyans could see beyond the fact that Mr Kenyatta is President, they would understand how unjust this situation is. Imagine a scenario where you have been accused of a heinous crime; managed to defend yourself successfully against your accuser to the point the accuser accepts she cannot sustain the allegations against you in court; only to watch such accuser manipulate the court to be allowed to publicise these same allegations she could not sustain in court, on the Internet. And you cannot sue her! If we can put ourselves in such a situation we would hold demonstrations demanding that the Kenyan State defend its citizen from such injustice.

Meanwhile I note that America is opposing ICC’s action against Israel on the argument that it is ‘counter-productive to the cause of peace’. Can we as Kenyans use the same argument to oppose the case against Deputy President William Ruto?

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

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