He feared that Otieno’s letter could easily be linked to allegations and perceptions that the prosecution has been acting in the interest of some Kenyan players especially politicians and civil society groups.
“No reason appears, of course, to support any supposition that this was something more than pure coincidence. But extreme care was surely called for on the part of the Prosecution in light of the constant complaint of the defence in this case that it may be that the Prosecution has been allowing itself to be influenced by the preference of certain interests that have stood in opposition to the political ambitions of the accused in the context of Kenyan politics,” he observed.
The Supreme Court petition that was challenging the election of President Uhuru Kenyatta was also brought to fore following the application by Otieno.
In view that Otieno was one of the petitioners, the judge was concerned that since she had lost the Supreme Court ruling, her application to the court could be another avenue given to her to ‘fix’ the accused persons.
“Coming right on the heels of the open letter authored by an individual who had also appeared as a petitioner before the Supreme Court of Kenya in a case seeking to nullify the election of the accused in the political office that he now occupies in Kenya,” he explained.
“The author of the open letter, having failed to defeat the accused’s political ambitions in the political or legal arenas of Kenya, might now be seeking to use the processes of this court to achieve what could not be achieved in Kenya- i.e. precisely the frustration of the accused in his ability to discharge the functions of the office to which he has been elected against the obvious wishes of the author of the open letter? The processes of this court must not be allowed exposure to such questions.”
Otieno’s open letter was also scrutinised by the presidency but also dismissed for other reasons that were perceived to be political.
In the ruling, the judge said Otieno was politicising the ICC process based on the time and manner in which she sent the open letter to the court alleging that the cases would be politicised if trials were heard in Kenya or Tanzania.
“The paradox in all of that is, of course, that the author of the ‘open letter’ was precisely engaged in the act of ‘politicisation’ of the case, by writing an open letter to the authorities of the court in an ongoing case and in relation to a decision pending before the court.”
He further explained: “To express those views in the extra-judicial manner of an ‘open letter’ is precisely to engage in politicisation of a pending case. Quite significantly, the author of the open letter engaged in that politicisation when no part of the case was being conducted anywhere but at the seat of the court here at The Hague. It is therefore a fallacy to imply that politicisation has thus far been avoided in the case and that the way to avoid exposure to politicisation is by avoiding going to Kenya to conduct any part of the trial.”
Earlier, accused persons and supporters had complained that some civil society groups were being used to fix them and also politicise the ICC process.
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