Will ICC unravel mystery of selective amnesia?


Developments at the International Criminal Court, (ICC) at The Hague during the ongoing trial of Kenyan leaders time and again exhibit blatant falsehoods by prosecution witnesses.

Splashed on live TV, this is laying bare what is fundamentally wrong with the trials facing President Uhuru Kenyatta, Deputy President William Ruto and radio journalist Joshua Sang.

The long held suspicion on the overall credibility of prosecution witnesses is gradually revealing the process to be farcical, to put it kindly and mildly.

During one of the proceedings, Witness P0356 admitted to being a convicted felon raising pertinent questions on the fairness if any of the trials. It was also revealed that Mr P0356 had been accused of four thefts in the past and had been found guilty on two of them. It also emerged he had in the past served two jail terms and faced three court charges in Kenya.

These damning revelations have raised new questions on the fairness of the ICC justice process and most importantly the risk of rogue witnesses being used by the Prosecution to abet the subversion of justice.

A witness who has stolen, not once, a witness who forged receipts to con the court of money, a witness who has been in and out of jail would have no moral authority to claim to be an honest person whose word can be relied on.

And that prosecution could not get a better witness to stand before the court of law, the prosecution chose somebody with criminal history for a witness, what does that tell you about the process of the investigation?

From the word go, investigations by the prosecution have been advanced as bungled and made up. Mass exodus of prosecution witnesses is also an indicator of questionable credibility tainting possibility of administration of justice.

Similarly, mass recanting of evidence by prosecution witnesses and apparent recollection of concocted, inordinate claims by the prosecution as was evident during cross-examination is a serious indictment to the Prosecutor’s office and questionable quality of investigation conducted before levelling claims of war crimes against leaders and citizens of a sovereign country that is one of the family of civilized states.

It is indisputable that the purpose and principle on which the court it was founded was to prevent any form of impunity which, in my opinion is clearly opposite of the script we are reading.

The prosecution also admitted they have a weak case against President Uhuru Kenyatta. In my opinion, all these cases are bound to collapse because, it would appear, they were politically driven – probably to embarrass some leaders rather than the desire to pursue justice.

In one instance the witness had wrongfully testified about the houses belonging to the Deputy President. When confronted with the house pictures, he recanted these statements saying he ‘messed up’.

This is not the first time a witness is openly contradicting himself or herself before the court during the trial. On several other occasions, we have been treated to shenanigans of witnesses’ selective amnesia, retractions or complete change of position midstream despite own sworn affidavits being readily available.

Now, to have a witness being suspected of lying to the court on one the hand and to have another who not only admits to lying before the court is a different kettle of fish altogether.

Justice systems the world over have as a matter of principal treated witnesses with records of criminal history with the contempt they deserve. This means that evidence provided by such witnesses is studied with a fine toothcomb before being considered in determining a case.

Question is; do the ongoing trials offer any remote chance of a shot at Justice either for the victims or the accused seeing the fundamental evidentiary flaws? This is the important question, trial judges at the ICC should ask themselves. In the eyes of many however, rogue witnesses have sounded the death knell at the probability of having a fair hearing. This is not to mention the millions of dollars that have gushed down the legal drain to support a flawed and inept House of justice and supposed bastion of jurisprudence.

For these basic reasons, it is time the ICC considers either terminating or dismissing altogether the cases facing the President, his deputy and Mr Sang. The purpose and principle on which ICC was founded was to prevent any form of impunity, which, in my opinion is clearly not the case. To paraphrase one sage, our relationship with the ICC is akin to a failed marriage. Marriages fall apart, in many spectacular ways, as do future plans of all kinds. It’s time to review the Kenya-ICC marriage.

(The writer is a political and communications consultant. Twitter @MachelWaikenda)

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